Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. No. CV 045023
Kline, P.J.
INTRODUCTION
Plaintiff Barbara E. Lane appeals from a judgment of the Marin County Superior Court entered pursuant to a stipulation to judgment entered into by other parties to a cross-complaint to her action to quiet title to an easement running across her property. She contends that the trial court abused its discretion in dismissing her first amended complaint as a terminating sanction due to her failure to participate in the action. Respondents William and Nancy Stewart, Steven and Liza Andre and Richard T. Thomas (parties to the stipulated judgment) contend that Lane’s appeal is untimely.
Lane contends: (1) that the appeal is timely; (2) that the trial court abused its discretion in dismissing her first amended complaint as a sanction for her nonappearance and refusal to participate; (3) that she was not given adequate notice of the pending dismissal sanction; and (4) that the stipulation to judgment on the cross-complaint erroneously refers to the dismissal of her first amended complaint as being with prejudice, when in fact it was dismissed without prejudice. (Respondents concede the judgment erroneously referenced the dismissal as with prejudice, but contend that the error does not require reversal of the judgment.)
We shall conclude the appeal is timely and shall affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
Appellant Lane filed her initial complaint to quiet title and for declaratory and injunctive relief against defendant Richard T. Thomas on November 16, 2004. She alleged therein as follows: Lane was the owner of certain real property known as 1754, 1756 and 1760 Indian Valley Road, in Novato, California. Thomas owned property commonly known as 1758 Indian Valley Road. Both parties were successors in interest to a certain “Declaration of Covenants, Conditions, and Restrictions for Maintenance of Private Driveway (“driveway easement”). The driveway easement created access from Indian Valley Road to individual parcels, over lands of other parcel owners and set forth criteria for giving notice and obtaining approval of 2/3 of the property owners before commencing repairs or improvements. Thomas had applied to Marin County to improve the driveway in order to satisfy the County’s requirements regarding fire vehicle access to his property, which he was developing with a 10,000-square-foot single family residence. However, Thomas failed to obtain approval of 2/3 of the other property owners or to give the requisite notice for the improvements. His plans called not only for repairs and improvements to the driveway, but for filling in a drainage ditch running along the westerly line of the driveway and for installing an enclosed 15-inch pipe that would be located seven to eight feet underground along the easterly side of the driveway to provide for storm drainage and water run-off that was handled by the open drainage ditch. Lane further alleged that the plans submitted by Thomas incorrectly located the western property line upon which the driveway easement originated by approximately 10 feet, thereby causing the improvements to the driveway to encroach upon her lands by approximately 10 feet. Lane sought to quiet title and for declaratory and injunctive relief, asserting that the installation of the improvements would kill and/or cause damage to trees located on her property, would undermine the pier foundations of her fencing and adornments, block historical and existing drainage improvements with no or inadequate plans for replacement drainage, and result in removal of several California Coastal Live Oaks. On February 7, 2005, Lane filed a first amended verified complaint seeking to quiet title and for declaratory and injunctive relief, adding in addition to Thomas, other parties owning parcels served by the driveway easement as defendants, including respondents herein (William and Nancy Stewart and Steven and Liza Andre), as well as other property owners Diane Martin and Athena Worley.
In March 2005, case management statements filed by counsel for Thomas and counsel for Lane related that the parties had a judicially supervised settlement conference at which, in the words of counsel for Thomas, the case was “settled conceptually. The parties are working out the details related to the concept.” The parties requested a continuance of the case management conference to May 12, 2005, the date of the hearing on the preliminary injunction, to allow the parties to finalize the proposed settlement.
On September 13, 2005, the Stewarts answered the first amended complaint and also filed a verified cross-complaint to quiet title, for declaratory relief and injunctive relief against Lane and all other defendants named in the first amended complaint. The Stewarts’ cross-complaint reasserted most of the same allegations of the first amended complaint against Thomas’s attempt to repair and improve the driveway easement and also asserted that the survey he relied upon was erroneous, causing his proposed improvements to encroach upon the Stewarts’ property.
On September 20, 2005, Lane substituted herself in propria persona in place of her attorney, Lawrence A. Baskin.
On November 17, 2005, upon stipulation of Thomas, Lane and the Stewarts, the court issued a preliminary injunction, enjoining Thomas “from performing any and all work on the driveway, drainage ditch, existing improvements, trees, fences, or any other portion or improvements within the easements . . . .”
On December 12, 2005, Lane sent a note to the court, ex parte, stating the stipulation for preliminary injunction was “done behind my back” and that James P. Nevin had never been her attorney. (Nevin was counsel for the Stewarts.)
The court set the case for a court trial on March 9, 2006, and notified the parties on December 2, 2005 that the case was set for a case management conference on December 20, 2005. Lane sent a second letter, ex parte to the court, contending she had never authorized or made “this multiple complaint” against parties other than Thomas and again contending Nevin was not her attorney.
Lane did not appear at the December 20, 2005 case management conference. The court set a mandatory settlement conference for January 31, 2006. On January 30, 2006, Thomas filed his answer to Lane’s first amended complaint and to the Stewarts’ cross-complaint. On January 31, 2006, Lane did not appear at the mandatory settlement conference. Nor did she file a settlement conference statement. The minute order for the settlement conference stated that the “case is reported as partially settled.” The court issued an order to show cause (OSC) as to why sanctions should not issue against Lane in the amount of $1,499 for her failure to file a settlement conference statement and failure to appear at the settlement conference. The court also stated it “will consider whether it is appropriate for Ms. Lane to pay the attorney fees of all present parties who were unable to resolve the matter in entirety due to her absence at the mandatory settlement conference.” The hearing on the OSC was set for February 8, 2006. On February 2, 2006, Lane sent another ex parte letter to the court stating: “If you read the following pages you will understand (as you already do) why I refuse to go to court for charges that I did not initiate with a biased Judge.” She also asserted the action against her neighbors had been taken without her approval, that the judge and Nevin had “trumped up these charges,” and that the judge should recuse himself from the case. Lane did not appear at the February 8, 2006 case management conference and OSC hearing. The court issued an order stating: “All parties are settled except for [plaintiff]. The court is concerned about a letter rec’d from [plaintiff]. OSC is not discharged. Matter set for CMC on 2/22/[06]. The court vacates the March 9th trial date in light of letter rec’d from [plaintiff]. OSC continued to 2/22/06.” Thus, another case management conference was set for February 22, 2006. In another ex parte letter to the court, dated February 17, 2006, Lane wrote to the judge: “You two (Atty. James Nevin) were the instigators laying my lawsuit against all my neighbors. Now you simply dismiss it since you received the irreconcilable truth that those were not my wishes. [¶] As I said earlier I refuse to partake in a courtroom where there is no law. Recuse yourself, for I will not have it settled by someone with such an ulterior motive in mind, and certainly not the Judge.”
It appears that the letter was accompanied by a one-page letter “To whom it may concern—” of no relevance to the action, but charging her mail was being intercepted and her voice mail blocked and her telephone line tapped, and containing references to and/or allegations against various attorneys, federal officials, her brother, the secret service, the president and others.
Lane did not attend the February 22, 2006 case management conference and continued hearing on the OSC. The court order issued on that date contains handwritten portions as follows: “The court is in receipt of another ex parte communication from [plaintiff]. The court may dismiss the matter once settlement is finalized between other parties. OSC is discharged on the . . . grounds that the court has some question as to [plaintiff’s] mental competency.” The order also set a future case management conference date of April 5, 2006, “to determine status between all [defendants and] to dismiss [plaintiff’s] case.” (Italics added.) On the side of the order was the handwritten notation: “CC: All parties.” The record also contains a typed minute order relating to the proceedings that does not contain the italicized portion of the order quoted above.
Plaintiff did not appear at the April 5, 2006 case management conference. The order entered and signed by the court on that date states: “[Defendants] have settled amongst themselves[.] Court has some questions about [plaintiff’s] mental status. Complaint filed by [plaintiff] is dismissed by court without prejudice.”
A case management conference was set for May 26, 2006. The case management statement filed by counsel for Thomas states: “The trial date was vacated, plaintiff’s complaint has been dismissed, the parties to the cross-complaint have settled this matter.”
On August 21, 2006, a “Stipulation to Judgment and Judgment and Order Thereon” was filed in the action.
The stipulated judgment related that at the mandatory settlement conference held January 31, 2006, Thomas, the Stewarts and the Andres reached a binding settlement agreement enforceable between and among them under Code of Civil Procedure section 664.6. Lane, Martin and Worley did not attend that settlement conference. The stipulated judgment consented to Thomas’s updated access plans submitted to the County of Marin for design review and approval, called for a payment of $10,000 from Thomas to the Stewarts, and for Thomas to deposit $3,000 in escrow following the sale of his home to be used for the cost of repaving that portion of the driveway parallel to the Stewart property and payable to the Stewarts if repaving does not occur before May 1, 2007. The parties further agreed “that the settlement agreement does not resolve the exact location or boundaries of the 20-foot wide easement and is not a quiet title to same, or any encroachments thereon.” The stipulated judgment also related that the Stewarts had taken the defaults of Martin and Worley, who had failed to appear in the action and provided they would be bound by the terms of the settlement agreement between the signatory parties. As to Lane’s first amended complaint, the stipulated judgment provided in paragraph 6:
“The Court has dismissed the underlying Complaint in this action as a terminating sanction against plaintiff, BARBARA LANE for her failure to prosecute this action and her repeated failure to participate in the proceedings after notice to plaintiff and an opportunity to be heard. The underlying Complaint having been dismissed by the Court, the settlement agreement between the signatory parties is intended to resolve any disputed issues between said signatory parties. As part of the Settlement Agreement reached by the non-dismissed and defaulted parties, Mr. THOMAS was permitted to pave the roadway at his expense. This also resolves a claim made by Plaintiff LANE in her complaint, now adjudicated adverse to her, in which she asserted that paving was not permitted under the roadway agreement, even at an owner’s expense, absent majority approval of the lot owners. That claim has been resolved, adverse to Ms. LANE, by both the settlement and dismissal of Ms. LANE’s Complaint with prejudice as terminating sanctions.” (Italics added.)
The stipulated judgment was signed by the judge on August 14, 2006, by counsel for Thomas and the Andres on July 17, 2006, and by counsel for the Stewarts on August 11, 2006. It was filed on August 21, 2006. Notice of entry of the stipulated judgment was filed on September 18, 2006, and served upon all parties, including Lane.
On November 15, 2006, Lane filed a notice of appeal from the August 21, 2006 judgment.
DISCUSSION
I. Timeliness of the Appeal
As a threshold matter, respondents contend that Lane has failed to file a timely appeal from the order of April 5, 2006 dismissing her first amended complaint without prejudice. Respondents are mistaken.
Code of Civil Procedure section 904.1 “effectively codifies the common law ‘one final judgment rule’: i.e., an appeal lies only from a final judgment that terminates the trial court proceedings by completely disposing of the matter in controversy. [Citation.]” (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2007) ¶ 2:21, pp. 2-17 to 2-18.) The order dismissing the complaint was not appealable at that time because the cross-complaint, naming Lane as a cross-defendant, was still pending. “When a cross-complaint remains pending between the parties, even though the complaint has been fully adjudicated, there is no final judgment.” (American Alternative Energy Partners II v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 557; California Dental Assn. v. California Dental Hygenists’ Assn. (1990) 222 Cal.App.3d 49, 59.) “[A]n appeal will be dismissed where a purported final judgment is rendered on a complaint without adjudicating the issues raised by a cross-complaint. [Citations.]” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 77, pp. 131-132; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs, supra, ¶ 2:70, p. 2-42; see, e.g., California Dental Assn. v. California Dental Hygenists’ Assn., at p. 59 [court has no authority to sever complaint from cross-complaint remaining to be tried merely to permit plaintiff to appeal from order dismissing complaint].) The policies underlying this rule are that informed, compact appellate review is best obtained by awaiting the entire action’s coherent resolution in the trial court. (See, e.g., American Alternative Energy Partners II v. Windridge, Inc., at pp. 556-557; California Dental Assn. v. California Dental Hygenists’ Assn., at p. 59; Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 966-967.)
The one final judgment rule thus precluded Lane from pursuing an appeal from the dismissal of her complaint to quiet title while the Stewart cross-complaint against her and other defendants remained pending and unresolved. Because the order dismissing her complaint was not a final, appealable judgment, Lane’s notice of appeal challenging that order and filed within 60 days of the September 18, 2006 filing and service of the notice of entry of final judgment of August 21, 2006 was timely. (Cal. Rules of Court, rule 8.104 ; see American Alternative Energy Partners II v. Windridge, Inc., supra, 42 Cal.App.4th at p. 557.)
All further “rule” references are to the California Rules of Court.
The parties focus on the minute order being “without prejudice” and, although they pay lip service to the one-final judgment rule, they ignore the issue of the pending cross-complaint. Although Lane argues that the order dismissing her complaint without prejudice was not a final judgment, she does not argue that this prevents the matter from being appealable now, following entry of the stipulated judgment of August 21, 2006. Indeed, her appeal of the court’s dismissal of her complaint rests upon the argument that the entry of the August 21, 2006 judgment triggered the time for her appeal.
Respondents further argue that Lane cannot challenge the April 5, 2006 order dismissing her complaint because she did not specify that order in her notice of appeal. Our determination that the April 5, 2006 dismissal was not an appealable judgment requires that we reject this contention. Rule 8.100(a)(2) provides that a “notice of appeal is sufficient if it identifies the particular judgment or order being appealed.” (See Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.) However, a “prior nonappealable order or ruling need not be specified in the notice of appeal from a subsequent appealable judgment or order.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs, supra, ¶ 3:119, p. 3-46, citing Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 668-669.) We turn to the merits of Lane’s appeal.
II. General Principles
Marin County Superior Court has adopted local rules relating to the administration of civil litigation to implement the Trial Court Delay Reduction Act (the Act) set forth in Government Code section 68600 et seq. (Super Ct. Marin County, Local Rules, rule 1.15.) “Trial courts are responsible for the monitoring of civil cases for the purpose of expediting them through the system. (Youngworth v. Stark (1991) 232 Cal.App.3d 395, 401; Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 498.)” (Wantuch v. Davis (1995)32 Cal.App.4th 786, 794.) “With the legislative mandate to manage cases, the Legislature granted to the courts authority to impose sanctions for noncompliance with rules adopted to implement the Act. These include the power to dismiss actions or strike pleadings. (Gov. Code, § 68608, subd. (b).) However, in imposing the ultimate sanction of dismissal, judges are required to consider the history of the conduct of the case. Government Code section 68608, subdivision (b) provides: ‘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 purpose of this [Act].’ (Italics added.) [¶] Code of Civil Procedure section 575.2, subdivision (a) permits a court’s local rules to prescribe sanctions, including dismissal of an action, for noncompliance with those rules. However, like Government Code section 68608, subdivision (b), there is an important limitation placed upon a judge’s exercise of this power. This limitation is found in subdivision (b) of section 575.2 which provides: ‘It is the intent of the Legislature that if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party’s cause of action or defense thereto.’ ” (Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, 1060-1061; see Wantuch v. Davis, supra, 32 Cal.App.4th at pp. 794-795 [“In order to facilitate the expeditious processing of civil cases, parties may be sanctioned for failure to comply with delay-reduction rules or court orders. [Citations.] These sanctions may include terminating sanctions . . .”].)
“Provisions of that act stress the importance of having trial courts move cases along swiftly and permit courts to sanction attorneys and litigants who do not cooperate in this state’s efforts to reduce the backlog of our trial courts. Among the sanctions mentioned is dismissal of the case. (See Gov. Code, §§ 68607 & 68608 . . . .)” (Reid v. Balter (1993) 14 Cal.App.4th 1186, 1193, fn. 3 (Reid).)
The Uniform Local Rules of the Marin County Superior Court (hereafter “local rules”) adopt the case management conference procedure described in the California Rules of Court. They require trial counsel for each appearing party to attend the first case management conference and to be familiar with the case and prepared to discuss all matters enumerated in rules 3.724 and 3.727. (Local rules 1.16 and 1.21.) “Attendance at settlement conferences by counsel completely familiar with the case is required. Counsel must be accompanied by his/her client . . . .” (Local rule 1.22C.) The “[f]ailure of an attorney and/or party to prepare for, appear at, or participate in a settlement conference, unless good cause is shown for any such failure, is an unlawful interference with the proceedings of the Court, and the Court may impose sanctions, including but not limited to, any and/or all of the following: monetary sanctions . . . and the Court may order an appropriate change in the calendar status of the action.” (Local rule 1.22D, italics added.) The court may order additional case management conferences where doing so would promote the fair and efficient administration of justice. (Advisory Com. com., 23 pt. 1A West’s Ann. Codes, Court Rules (2006 ed.) foll. rule 3.723, p. 354 [former rule 212(c)].) Parties are required to appear at additional conferences “only if an appearance is necessary for the effective management of the case.” (Rule 3.723 [former rule 212(c)].)
Code of Civil Procedure section 575.2 provides authority for sanctions for noncompliance with local pretrial conference rules as follows:
“In propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know the delay-reduction rules. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; [citations].)” (Wantuch v. Davis, supra, 32 Cal.App.4th at p. 795.)
“However, the delay-reduction rules and the policy of expeditious processing of civil cases do not override, in all situations, the trial court’s obligation to hear cases on the merits. (Moyal v. Lanphear, supra, 208 Cal.App.3d at p. 503; cf. Estate of Meeker (1993) 13 Cal.App.4th 1099, 1105-1106; Youngworth v. Stark, supra, 232 Cal.App.3d at p. 401.) Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. [Citations.] Terminating sanctions should not be ordered as a first response when noncompliance is through no fault of the party. [Citations.]” (Wantuch v. Davis, supra, 32 Cal.App.4th at p. 795, italics added.)
The authorities recognize “at least two limitations or restrictions on the trial court’s power to dismiss an action for noncompliance with local rules: (1) dismissal is inappropriate if the noncompliance was the responsibility of counsel alone, rather than the party (Code Civ. Proc., § 575.2, subd. (b); Garcia v. McCutchen [(1997)] 16 Cal.4th [469,] 481); and (2) dismissal is appropriate only if less severe sanctions would be ineffective (Gov. Code, § 68608, subd. (b).)” (Tliche v. Van Quathem, supra, 66 Cal.App.4th at pp. 1061-1062.) A third limitation—adequate notice and opportunity to be heard prior to the imposition of sanctions—is required not only by principles of due process, but also by the authorizing statute. Code of Civil Procedure section 575.2, subdivision (a) provides in relevant part: “No penalty may be imposed under this section without prior notice to, and an opportunity to be heard by, the party against whom the penalty is sought to be imposed.”
“In administering the fast track system, the trial court must exercise its discretion at each stage of a lawsuit in the process of bringing a case to trial, or alternatively, imposing sanctions such as dismissal. Since trial management is a discretionary area, the proper standard of review for a challenge to trial management orders is abuse of discretion.” (Moyal v. Lanphear, supra, 208 Cal.App.3d at p. 498.)
III. No Abuse of Discretion in Dismissing the Complaint
Lane contends that the trial court abused its discretion in dismissing her complaint as a terminating sanction in the case. Analogizing to the violation of discovery orders, she contends that the imposition of terminating sanctions was overbroad; that a less drastic sanction would have been more appropriate; that there was no showing her failure to comply was willful, rather than due to an inability to comply; that her failure to attend the case management conference had not been proceeded by a history of abuse of pretrial procedures; and that there was no showing that less severe sanctions would not have produced compliance.
We conclude that the trial court did not abuse its discretion in dismissing her complaint in the circumstances presented here.
The trial court did not cite any specific authority in its order dismissing the first amended complaint. In the stipulated judgment filed following the settling of the cross-complaint, it identified the reason it had dismissed the complaint “as a terminating sanction against plaintiff, BARBARA LANE for her failure to prosecute this action and her repeated failure to participate in the proceedings after notice to plaintiff and an opportunity to be heard.”
Lane persistently and repeatedly refused to participate in the litigation. Although she argues the court did not provide adequate notice that it was considering terminating sanctions, Lane has never argued that she did not have adequate notice of the case management conferences and settlement conference hearing. Nor has she disputed that her attendance at those proceedings was required.
Despite notice of the proceedings, Lane did not appear at the December 20, 2005 case management conference. She failed to file a settlement conference statement and failed to appear at the January 31, 2006 mandatory settlement conference, at which point the court issued an order to show cause why monetary sanctions should not issue and set the hearing for February 8, 2006. Despite issuance of the order to show cause and the threat that the court would impose monetary sanctions, Lane not only refused to attend the February 8, 2006 case management conference and show cause hearing, but sent another ex parte letter to the court expressly stating, “I refuse to go to court for charges that I did not initiate with a biased Judge.” (Italics added.) Her willful refusal to participate in the proceedings, whether or not monetary sanctions were being considered, could not have been more clear.
Lane’s absence from the February 8, 2006 proceedings resulted in the court’s vacating the trial date and continuing the OSC hearing to February 22. Once again, Lane did not attend the February 22, 2006 case management conference and continued hearing on the OSC. Nor did she appear at the April 5, 2006 case management conference, despite the court’s order warning that it might dismiss her complaint once settlement was finalized among the other parties.
As recognized in Moyal v. Lanphear, supra, 208 Cal.App.3d 491, 502: “The Legislature has made clear its intent that a party’s cause of action should not be impaired or destroyed by his or her attorney’s procedural mistakes. [Citation.]” Here, Lane’s local rule violations and refusals to participate in the proceeding were not “procedural mistakes”; nor were they attributable to counsel. The court could well view her failures to attend any of the proceedings after determining to prosecute the action herself, as evidencing repeated, willful violations of local rules and the court’s orders, particularly given her express statements that she refused to participate in the proceedings.
Furthermore, the court was not required to actually impose lesser sanctions before dismissing her complaint. Government Code section 68608, subdivision (b), authorizes the court to impose sanctions, including dismissing an action or pleading “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.” (Italics added.)
In Tliche v. Van Quathem, supra, 66 Cal.App.4th 1054, the trial court dismissed the plaintiff’s action for failure to serve the summons within the 60-day time frame set by a Los Angeles County Superior Court local rule. The Court of Appeal held the trial court’s dismissal of the complaint was premature and unauthorized where (1) there was no evidence of prior sanctions as against either the plaintiff or counsel, and (2) there was no evidence the plaintiff was in any way responsible for the delay in service. (Id. at p. 1062.) Tliche is clearly distinguishable from the present case, as Lane is solely responsible for her nonappearances and for the delays caused thereby. Moreover, although the Tliche court relied in part on the lack of evidence of any lesser sanctions on the plaintiff or counsel, it did so in the context of the Government Code section 68608, subdivision (b) limitation that “dismissal is appropriate only if less severe sanctions would be ineffective. (Gov. Code, § 68608, subd. (b).)” (Tliche v. Van Quathem, at pp. 1061-1062, italics added.)
Demonstrably, the threat of monetary sanctions had no effect on obtaining Lane’s compliance with court rules regarding attendance at the case management conferences. Despite two court orders directing her to “appear and show cause” as to why monetary sanctions should not issue for her failure to file a settlement conference statement and her failure to appear at the settlement conference, she willfully continued to refuse to participate. The court’s determination not to impose monetary sanctions on the grounds that it had some question as to her “mental competency” did not prevent it from considering the terminating sanction of dismissal, given the strong likelihood that no less drastic sanction would have any effect on Lane’s behavior. The court had ample reason to believe that less severe sanctions would be ineffective, given Lane’s persistent, repeated, and determined refusal to appear or participate in the action and her continued flouting of the orders of the court.
IV. Notice
Lane contends that reversal of the judgment dismissing her first amended complaint is required because she was not provided adequate notice that the court intended to dismiss the complaint as a sanction.
As we have recognized, Code of Civil Procedure section 575.2, authorizing the imposition of sanctions, including dismissal, for violation of local rules, provides in relevant part that, “[n]o penalty may be imposed under this section without prior notice to, and an opportunity to be heard by, the party against whom the penalty is sought to be imposed.” (Code Civ. Proc., § 575.2, subd. (a).) Moreover, not only the statute, but constitutional requirements must be satisfied. “Due 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.] ‘[The] adequacy of notice should be determined on a case-by-case basis to satisfy basic due process requirements. . . .’ [Citation.]” (Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63, 70 (Barrientos).)
Lane first argues that notice was inadequate because the minute order advising her that the court was considering dismissal as a sanction did not comply with Code of Civil Procedure sections 1005 and 1010 and with rule 3.1110 requiring specific formatting and information be included in a notice to a party whose rights may be affected. Those rules apply to motions filed and served by litigants. Here, no motion was filed. The court was considering dismissal as a sanction on its own motion. So long as the notice satisfied due process requirements, particular formatting was not required.
Lane argues that notice was inadequate because the court spoke in the conditional, that it “may dismiss the matter once settlement is finalized between other parties” (italics added), but proceeded to dismiss the complaint on April 5, 2006, at the next hearing, before the settlement was “finalized” four months later.
Lane ignores that the February 22, 2006 order, although discharging the order to show cause for monetary sanctions against her, set a case management conference date of April 5, 2006, “to determine status between all Defts + to dismiss Pltf’s case.” (Italics added.) Lane does not contend she did not receive this order. Indeed, in her appellant’s opening brief, she specifically references this minute order (ACT 2 [appearing in the Augmented Clerk’s transcript at page 2]), rather than the typed copy omitting the italicized wording. She states with reference to the copy of the original order appearing at ACT 2: “This Order was sent to Ms. Lane with a clerk’s Notice of Hearing, which only notified Ms. Lane that a further CMC had been set (CT:310).” (Italics added.) No proof of service appears in our record, however, the order itself contains a handwritten notation on the margin “CC: All Parties.”
Lane relies upon several cases discussing adequacy of notice in the sanctions context. All are clearly distinguishable from the instant case.
In Moyal v. Lanphear, supra, 208 Cal.App.3d 491, the appellate court affirmed a monetary sanctions order as to plaintiff Moyal’s counsel for noncompliance with orders made and deadlines set under “fast track” procedures adopted by San Diego County under the Act (Gov. Code, § 68600 et seq.). (Moyal,at p. 494.) However, it reversed the sanctions order dismissing Moyal’s complaint for those same violations on the ground that Code of Civil Procedure section 575.2, subdivision (b) limits the power of a court to destroy a party’s cause of action due to the party’s attorney’s procedural mistake. (Id. at p. 502.) The Moyal court found that the sanctions notice regarding dismissal was inadequate as to Moyal, as it required her to know that section 575.2, subdivision (b) contained a provision authorizing dismissal. (Id. at p. 503.) Under all the circumstances before it, the court determined dismissal of Moyal’s complaint was not made upon adequate notice and thereby violated her due process rights. (Ibid.) In the case before us, the fault was completely that of Lane and not of her counsel. A litigant acting in propria persona is “entitled to the same, but no greater, rights than represented litigants and are presumed to know the delay-reduction rules. (Rappleyea v. Campbell [, supra,] 8 Cal.4th 975, 984-985; [citations].)” (Wantuch v. Davis, supra, 32 Cal.App.4th at pp. 794-795.) In any event, the February 22, 2006 order did not require Lane to know that a particular statute encompassed dismissal. Rather, the order notified Lane explicitly that the court was considering dismissing her complaint.
In Barrientos, supra, 30 Cal.App.4th 63, the appellate court reversed an order imposing monetary sanctions against two attorneys where the trial court failed to give counsel notice or an opportunity to be heard before ordering the sanctions. (Id. at pp. 70-72.) The attorneys had appeared at a final status conference unprepared to treat it as a mandatory settlement conference and had allegedly engaged in improper behavior during the conference. (Id. at pp. 66-68.) Before the conference, the court alluded to a possible intent to impose sanctions to one of the attorneys, stating: “ ‘I trust that you [attorney Stevens] and she [attorney Lewis] will work the case out then before we need to talk about any distasteful matters, such as ignoring the court order and the California Rules of Court. I’m sure we won’t have to talk any further about that because you guys will probably be able to settle it without that . . . .’ ” (Id. at p. 71.) Lewis was not present at the time and had no knowledge of the remark, which in any event did not adequately convey the court’s intention to impose sanctions or grant counsel the opportunity to respond. (Ibid.) The record did not clearly establish that the court gave notice of its intent to impose sanctions in the course of the chambers conference. Nor did it appear the court ever indicated the precise basis of a potential sanctions order. (Ibid.) Furthermore, the court did not provide the attorneys an opportunity to explain, on the record, their conduct before making its decision. Finally, the court’s comments when imposing the sanctions established that it improperly gave counsel an opportunity to avoid paying the sanctions by settling the case—“the court used its power to impose monetary sanctions on counsel to coerce a settlement.” (Id. at pp. 71-72, fn. omitted.)
In Roman v. Usary Tire & Service Center (1994) 29 Cal.App.4th 1422 (Roman), the court held that notice of hearing on an order to show cause “re dismissal/sanctions” provided due process notice of the possibility of dismissal due to delay in prosecution. (Id. at pp. 1426-1428.)
Nevertheless, the appellate court reversed the dismissal because the trial court had abused its discretion in dismissing the action where the order specified dismissal as pursuant to Code of Civil Procedure section 583.410, subdivision (a), and discretionary dismissal for delay in prosecution pursuant to that statute was premature where the case had been pending for less than two years. (Roman, supra, 29 Cal.App.4th. at pp. 1430-1431.)
The Roman court discussed and distinguished Reid, supra, 14 Cal.App.4th 1186, where the court had found notice inadequate. “In Reid, the trial court’s notice of a trial setting conference on May 15, 1989, advised plaintiffs the case would be dismissed if they or their counsel failed to appear. At the trial setting conference, the trial court ordered the matter to arbitration, with an award to be submitted within 120 days, and set a status conference for October 27, 1989. The order warned, ‘if the court’s orders were violated, “sanctions may be imposed by way of contempt, payment of money, including attorney’s fees and costs incurred by other parties, and/or removal of the case from the civil active list.” ’ ([Reid, ] at p. 1189.) The arbitrator made his award but plaintiffs failed to appear at the scheduled status conference. The trial court ordered the case dismissed. However, the order of dismissal was vacated and a subsequent motion by defendants to dismiss was denied and the case went to trial. (Id. at p. 1190.) After judgment in plaintiffs’ favor, defendants appealed, arguing the order of dismissal was valid and appropriate, since plaintiffs failed to appear at the October 1989 status conference.” (Roman, supra, 29 Cal.App.4th at p. 1429, fn. 3.) “The court reasoned that the warning the case could be dismissed if plaintiffs failed to appear on May 15, 1989, for a trial setting conference was not sufficient notice to sustain dismissal for failure to appear October 27, 1989, at the status conference. The order for the status conference specifically stated which sanctions might be imposed, but did not include dismissal. ([Reid, supra,] 14 Cal.App.4th at pp. 1193-1194.)” (Roman, at p. 1429.)
In contrast to Reid, the court in Roman, supra, 29 Cal.App.4th 1422, rejected the sanctioned attorney’s argument that the notice of the order to show cause hearing was defective for failure to cite any statutory authority for dismissal or to warn of dismissal for nonappearance. The Roman court concluded that “the possibility of dismissal was expressed in the trial court’s notice of the [order to show cause hearing]. The notice ordered the cause ‘SET FOR OSC RE DISMISSAL/SANCTIONS ON 12-21-92 AT 8:30 A.M. IN DEPARTMENT SE-F. [¶] APPEARANCE IS MANDATORY AND OPPOSITION, IF ANY, TO BE FILED WITHIN 15 DAYS OF THIS ORDER.’ ” (Roman,at p. 1429.) Although the notice did not refer to any statutory authority or legal basis for dismissal, the notice in the context of the action related back to an earlier notice and resulting order directing the attorney to reset arbitration, and provided sufficient notice of the possibility of dismissal to satisfy due process. (Ibid.)
Here, unlike Reid, supra, 14 Cal.App.4th 1186and Barrientos, supra, 30 Cal.App.4th 63,the February 22, 2006 case management conference order did warn Lane that the court was considering dismissing her action. Moreover, as in Roman, supra, 29 Cal.App.4th 1422, it was clear in the context of the entire action that the court was considering doing so due to her failure to follow local rules, including her failure to file a settlement conference statement, her failure to appear at the mandatory settlement conference, and her refusal to participate in the action. The January 31, 2006 order to show cause, previously issued by the court and continued until the court discharged it on February 22 due to its concerns about Lane’s “mental competency,” stated the court was considering monetary sanctions for her failure to file a settlement conference statement and her failure to appear at the mandatory settlement conference. Lane’s letters to the court indicate her understanding that the court was requiring her attendance and participation and her continued and willful refusal to attend or to participate. Moreover, the notation on the February 22, 2006 minute order that the next case management conference was set for April 5, 2006 at 9:00 a.m. in Department H, and that the court would at that time “dismiss [plaintiff’s] case,” resolved any doubt that the dismissal would be considered at that hearing. Lane does not contend that she was denied the opportunity to attend the case management hearing of April 5, 2006 to argue against the dismissal sanction.
Lane does not contend that the order dismissing her complaint without prejudice was defective because it failed to recite in detail the conduct justifying sanctions. (See Code Civ. Proc., § 177.5; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 12:99, p. 12(1)-36.) Although an order imposing sanctions under Code of Civil Procedure section 177.5 must “recite in detail the conduct” justifying sanctions, “there is apparently no comparable requirement where sanctions are imposed under local “fast track” rules.” (Weil & Brown, supra, ¶ 12:99, p. 12(1)-36, citing Laborers’ Internat. Union of North America v. El Dorado Landscape Co. (1989) 208 Cal.App.3d 993, 1009 [dictum because order adequately specified reasons for sanctions].)
Accordingly, in the circumstances presented, appellant received notice adequate under statute and complying with due process.
V.
Erroneous Reference to Dismissal With Prejudice Correctable Nunc Pro Tunc
Respondents concede that the reference in the stipulated judgment to Lane’s first amended complaint having been dismissed “with prejudice” was erroneous, as the court dismissed that complaint “without prejudice.” Lane contends that we should reverse the judgment of dismissal because it does not accurately reflect the ruling set forth in the April 5, 2006 minute order. That portion of the August 21, 2006 stipulated judgment reciting that the first amended complaint had been dismissed with prejudice was descriptive of the previous order of the court. We have heretofore determined that the court intended by that order to finally dispose of the first amended complaint. The error in the subsequent stipulated judgment reciting the dismissal of the first amended complaint was “with” prejudice was clerical and subject to correction nunc pro tunc. The parties have not argued that such a correction would have any impact on the issues raised in this appeal. We therefore order the correction nunc pro tunc of the August 21, 2006 stipulated judgment to reflect that the dismissal of the first amended complaint was “without prejudice.”
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on this appeal.
We concur: Lambden, J., Richman, J.
Although it is the case that a voluntary dismissal without prejudice is not appealable, courts have found involuntary dismissals without prejudice to be appealable where it is clear the court intended a final judgment on the issue. In Topa Ins. Co. v. Fireman’s Fund Ins. Companies (1995) 39 Cal.App.4th 1331, 1335-1336 (Topa), the court acknowledged the “general rule [that] an involuntary dismissal effected by written order of the court is appealable. (Cal. Civil Appellate Practice (Cont.Ed.Bar, 2d ed. 1985) § 2.10, p. 29; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 75, p. 99; cf. Code Civ. Proc., § 581d.)” (Topa, at p. 1336.) Topa held the trial court’s determination that the involuntary dismissal should be without prejudice to mean that if new facts developed Topa would be at liberty to file a new action based on those new facts. The appellate court stated it was “satisfied that the order represents a final judicial determination of Topa’s rights against Fireman’s Fund in this action and therefore is appealable in accordance with the general rule.” (Ibid.) In the instant case, it also appears that despite stating the dismissal of Lane’s first amended complaint was “without prejudice,” the court did intend to finally dispose of the complaint.
“(a) Local rules promulgated pursuant to Section 575.1 may provide that if any counsel, a party represented by counsel, or a party if in pro se, fails to comply with any of the requirements thereof, the court on motion of a party or on its own motion may . . . dismiss the action or proceeding or any part thereof . . . . No penalty may be imposed under this section without prior notice to, and an opportunity to be heard by, the party against whom the penalty is sought to be imposed.
“(b) It is the intent of the Legislature that if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party’s cause of action or defense thereto.”
We note the reference to “failure to prosecute” could not have intended to reference the two-year discretionary dismissal statute (Code Civ. Proc., § 583.420, subd. (a)(2)(B)) as the action had been pending only 17 months from the date of filing of the original complaint on November 16, 2004. Nor have we found specific authority in the local rules that would authorize dismissal for failure to prosecute the action where it had been pending for less time than that set forth in the statute.
We are left with the court’s statement that it dismissed the action for Lane’s “repeated failure to participate in the proceedings . . . .”