John v. Los Angeles Unified School Dist.

Filed 9/18/09 John v. Los Angeles Unified School Dist. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, David P. Yaffe, Judge. Affirmed.

Aleyamma John, in pro. per., for Plaintiff and Appellant.

Liebert Cassidy Whitmore, Mary Dowell and Arlin B. Kachalia for Defendant and Respondent.

_________________________

Plaintiff and appellant Aleyamma John (John), in propria persona, appeals an order of dismissal for her failure to serve defendant and respondent Los Angeles Unified School District (the District) with her petition for writ of administrative mandate. (Code Civ. Proc., 1094.5.)[1]

On August 20, 2007, John filed a petition for writ of administrative mandate challenging the Districts decision terminating her employment. Rule 3.110(b) provides: The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint. Despite repeated warnings by the trial court, John did not comply with this procedural mandate. On February 14, 2008, pursuant to an order to show cause, the trial court dismissed the action due to Johns failure to file proof of service of the petition upon the District.

On the record presented, we perceive no abuse of discretion in the trial courts ruling and affirm the order of dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

John was a permanent classified employee assigned as a paralegal to the Office of General Counsel at the District.

1. Previous proceedings.

On September 15, 2004, the District served John with a notice that she would be suspended for 10 working days without pay based on various charges. Ultimately, on April 12, 2006, the Districts Personnel Commission (Commission) suspended John for three days without pay for discourteous treatment of her supervisor.

On May 24, 2006, John, in propria persona, filed a petition for writ of administrative mandate ( 1094.5) seeking to overturn the Districts decision. John contended the Districts decision was not supported by the weight of the evidence and that the penalty of a three-day suspension was excessive as a matter of law. John waited over a year, until June 1, 2007, to serve the petition upon the District.

In its opposition, the District contended the petition was barred by laches, and in any event, the Commission properly found that John engaged in discourteous conduct towards her supervisor, and that Johns conduct warranted a three-day suspension without pay.

On October 19, 2007, the trial court (Judge Janavs) denied Johns petition for writ of administrative mandate. The trial court rejected the Districts laches argument, finding the District had failed to show it suffered any prejudice as a consequence of Johns one-year delay in serving the petition. As for the merits, the trial court determined the decision was supported by the weight of the evidence and the penalty of a three-day suspension fell well within the parameters.

John appealed. In John v. Personnel Commission of Los Angeles Unified School District (Dec. 30, 2008, B204070) [nonpub. opn.], this court affirmed the judgment.

2. The instant proceedings.

On November 24, 2004, shortly after the commencement of the prior administrative proceeding, the District terminated Johns employment on various charges of misconduct.

a. Administrative proceedings.

John appealed the termination to the Commission. On April 6, 2007, the hearing officer issued a 75-page proposed decision recommending that the Commission sustain four causes of action against John and that Johns employment be terminated based on findings related to the four sustained causes of action.[2]

On July 31, 2007, the Commission adopted the hearing officers proposed decision as its decision in the case.

b. Superior court proceedings; trial court dismisses the petition for Johns failure to serve the petition on the District.

On August 20, 2007, John filed a petition for writ of administrative mandate challenging her termination. ( 1094.5.) The matter was assigned to Judge Yaffe.

In a letter to the District dated December 11, 2007, in which John disputed the Districts assertion that certain materials were not part of the administrative record, John acknowledged the District has not been officially served with notice of my second lawsuit against the District . . . .

On December 31, 2007, the trial court issued an order to show cause to John for failure to file proof of service. The order to show cause directed John to appear on February 14, 2008 and show cause why sanctions, including dismissal, should not be imposed in accordance with rule 3.110, sections 583.150, 583.360 and 583.420, and Government Code section 68608, subdivision (b).

On January 25, 2008, John notified the Districts counsel that she intended to seek ex parte relief to file a lengthy brief. The Districts counsel responded that because John has not yet served the petition, the trial court lacked jurisdiction over the District in this matter, and therefore the District would not be appearing at the ex parte hearing.

The ex parte hearing proceeded on January 28, 2008. The trial court granted John leave to file a 30-page opening brief. The trial court reminded John that on December 31, 2007, the court had issued an order to show cause, which was set for hearing on February 14, 2008, and that the petition was to be served on the opposing party and proof of service filed with this court within 60 days after you file it.

By the time of the February 14, 2008 hearing on the order to show cause, John still had not served the District with the petition and had not filed proof of service thereof. John did not file any written response to the order to show cause.

At the February 14, 2008 hearing, John orally gave her reasons for cause: I reviewed some of the statutes . . . . It doesnt seem that there is an absolute date for the petition to be served or the proof filed with the court, as long as its done. . . . [I]t seems the only one is C.C.P. 1005 and 16 days or 21 days before the hearing date . . . .

The trial court stated: You dont have the faintest idea what youre doing here. The court has [no] jurisdiction over the party youre suing because you never served them with a copy of the petition. [] . . . [] . . . Youre required by California Rule of Court 3.110 to have served this petition . . . within 60 days after August 20, 2007.

In a further attempt to show good cause, John stated she did not serve the petition because it wouldnt have been cost efficient if Judge Janavs [who was handling the related matter] decided she had jurisdiction over the termination . . . .

The trial court then dismissed the petition pursuant to section 583.150 of the Code of Civil Procedure for failure of the petitioner to serve the petition within the time required by California Rule of Court 3.110 and for failure of petitioner to show good cause for the failure to do so. The order of dismissal was signed and entered on February 14, 2008.[3]

c. Post-dismissal proceedings.

On February 15, 2008, the day after the dismissal, John appeared before the court on an ex parte application to vacate the dismissal. The trial court denied the ex parte application, stating [n]otice must be given to respondent and real party in interest. Requires noticed motion.

On February 15, 2008, notwithstanding the fact the mandamus proceeding already had been dismissed, John served the petition on the District and unilaterally set a hearing date on the petition of May 16, 2008.

On February 29, 2008, John filed a motion to vacate the February 14, 2008 dismissal and enter a different judgment ( 663) and for relief from mistake under section 473, subdivision (b); as well as a motion for leave to file a lengthy brief on her mandamus petition.

Specially appearing, the District filed opposition to the motion to vacate the judgment and the motion for leave to file a lengthy brief.

On April 18, 2008, the trial court vacated the May 16, 2008 hearing on the merits of the mandamus petition. The trial court also ordered off calendar hearings on all motions set by John for April 18, 2008 and struck all her moving papers. The court ruled the clerk should not have accepted Johns papers for filing because they did not comply with the form and format requirements of the Rules and ordered John not to file, or attempt to file, any further noncompliant papers.

John then filed a series of requests to disqualify Judge Yaffe. On April 25, 2008, the trial court ruled insofar as the pleading was intended as a peremptory challenge pursuant to section 170.6, it was denied as untimely; insofar as the pleading was a verified statement of disqualification for cause, it was untimely and demonstrated on its face no legal grounds for disqualification. On May 8, 2008, the trial court struck Johns amended statement of disqualification and ordered her not to file further repetitive statements of disqualification.

On May 14, 2008, John filed another motion to vacate the February 14, 2008 dismissal and enter a new and different judgment ( 663), or for relief from mistake under section 473, subdivision (b). John argued, inter alia, she had shown excusable neglect in that she was proceeding in the same manner as in the related mandamus proceeding before Judge Janavs, and no issue was raised there as to the timeliness of service of the petition.

d. Trial courts ruling on Johns motions to set aside the February 14, 2008 dismissal.

On June 20, 2008, the matter came on for hearing. The trial court denied Johns motion to vacate the judgment of dismissal under section 663, as well as her motion for relief from mistake under section 473, subdivision (b). All other requests for relief by John were ordered off calendar.

The trial courts ruling states in relevant part: Petitioner filed her petition for writ of mandate in this matter on August 20, 2007. On December 31, 2007, this court ordered petitioner to show cause why sanctions, including dismissal of this action, should not be imposed upon her for her failure to file a proof of service showing that a copy of the petition was served upon the respondent within the time required by CRC 3.110. Petitioner failed to respond in writing to the Order to Show Cause and she failed to show cause for her failure to timely serve respondent at the hearing thereof on February 14, 2008. The court therefore ordered that her petition be dismissed on that date for her failure to comply with CRC 3.110. In her declaration supporting her motion to vacate that dismissal she states the following:

1. Petitioner wanted to delay proceeding in this matter until she found out whether Judge Janavs would rule in her favor in another proceeding. If Judge Janavs did rule in her favor, she wanted to seek to have this proceeding transferred to Judge Janavs. (Declaration of Petitioner, Paragraph 11, 11:13-20).

2. Petitioner filed the petition in this matter only because she thought that the statute of limitations applicable to her claim against a local public entity was governed by the Administrative Procedural Act, Government Code section 11523 (Declaration of Petitioner, Paragraph 8, 11:5-6).

3. Petitioner deliberately withheld serving the petition in this matter until she completed her Opening Brief so that she could delay making the School District a party to the proceeding until she could file a noticed motion to hear the matter on the merits (Declaration of Petitioner, Paragraph 12, 11:21-27).

Petitioner deliberately refused to comply with CRC 3.110 because it interfered with her plans to shop for a sympathetic judge and her plan to withhold notifying her adversary of this law suit until she could unilaterally set it for a hearing on the merits.

The only evidence that petitioner offers in support of her claim of mistake, surprise, or excusable neglect, is Paragraph 9 of her declaration in which she states: Petitioner was dealing with both the upcoming hearing in Department 85 as to her suspension, and promptly filing her appeal, as well as medical issues for herself and within her family, and hence was unable to immediately serve the petitioner (sic) as to her termination on the opposing party. In light of the other reasons that petitioner gives for not serving the petition, her claim that she was unable to serve her petition is not supported by sufficient evidence to be credible. The service requirement of CRC 3.110 interfered with petitioners schemes for manipulating things that she considered to be to her tactical advantage, so she ignored such service requirements. By the order issued by this court to show cause why her petition should not be dismissed for her failure to timely serve the petitions she was given notice and an opportunity to be heard before her petition was dismissed, but she failed and refused to give the court any valid reason to excuse her failure to timely serve the petition. Petitioner is not entitled to relief under Code of Civil Procedure section 473.

Petitioner admits that her main contention is that the court has no authority to dismiss her petition so long as she serves it within two years after she files it. (Reply Brief, 1:21-2:2). She may have miscalculated her chances of success because of her failure to consider the purpose and effect of the Trial Court Delay Reduction Act, and in particular Government Code section 68608(b), even though that statute is cited in the Order to Show Cause issued to her by the court.

On June 30, 2008, John filed a timely notice of appeal from the February 14, 2008 order of dismissal.

CONTENTIONS

John contends: rules and procedures in Department 86 (Judge Yaffe) are not different from rules and procedures in Department 85 (Judge Janavs); rule 3.110(b) applies to complaints, not to petitions for administrative mandamus; neither the District nor the trial court cited to any law which states the appropriate remedy for failure to serve within 60 days is dismissal; she is entitled to relief from mistake under section 473, subdivision (b) and her failure to serve within 60 days cannot be deemed a severe lack of compliance; and the District was not prejudiced by the delay in service, nor has it displayed prejudice.

DISCUSSION

1. Standard of appellate review.

In reviewing the lower courts dismissal of [an] action for failure to prosecute, the burden is on appellant to establish an abuse of discretion. [Citation.] We will not substitute our opinion for that of the trial court unless a clear case of abuse is shown and unless there is a miscarriage of justice. [Citation.] [Citation.] (Sagi Plumbing v. Chartered Construction Corp. (2004) 123 Cal.App.4th 443, 447.)

2. Statutory scheme and the pertinent fast track rule.

Section 583.420, pertaining to discretionary dismissal for delay in prosecution, states in relevant part: (a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred: [] (1) Service is not made within two years after the action is commenced against the defendant. (Italics added.)

However, section 583.420 does not entitle a plaintiff to delay service for two years. Section 583.150 provides: This chapter [Chapter 1.5, Dismissal for Delay in Prosecution] does not limit or affect the authority of a court to dismiss an action or impose other sanctions under a rule adopted by the court pursuant to Section 575.1 or by the Judicial Council pursuant to statute, or otherwise under inherent authority of the court.

As part of the Trial Court Delay Reduction Act (Gov. Code, 68600 et seq.), the Judicial Council, as the policy and rulemaking body for the courts, was directed by the Legislature to promulgate standards of timely disposition of civil and criminal actions. (Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, 1059, citing Gov. Code, 68603, subd. (a).)[4] Judges have the power to impose sanctions for noncompliance, including dismissal, if it appears that less severe sanctions would be ineffective, after taking into account previous lack of compliance in the case. (Gov. Code, 68608, subd. (b).)

Rule 3.110(b), which was promulgated by the Judicial Council in furtherance of the fast-track policies (Younger on California Motions (2008 ed.) 10:5), states in relevant part: The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint.

Each rule in the Rules has the force of law. (Carlson v. Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1272.)

3. Trial court acted within its discretion in dismissing Johns mandamus petition; John failed to serve the petition within 60 days of filing or at any time prior to the February 14, 2008 dismissal.

As stated in Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, in propria persona litigants are not entitled to any special treatment from the courts. [Citation.] But that doesnt mean trial judges should be wholly indifferent to their lack of formal legal training. (Id. at p. 1285.)

Here, Judge Yaffe took affirmative steps to ensure John understood her action would be dismissed if she failed to serve her petition on the District. On December 31, 2007, the trial court issued an order to show cause for failure to file proof of service. The order to show cause specifically referred to rule 3.110. Thereafter, at an ex parte hearing on January 28, 2008, the trial court reminded John that on December 31, 2007, the court had issued an order to show cause, which was set for hearing on February 14, 2008, and that the petition was to be served on the opposing party and proof of service filed with this court within 60 days after you file it.

Despite this advisement, John never served the District with her mandamus petition prior to the February 14, 2008 dismissal. It was not until the following day, after the involuntary dismissal of her petition, that John served the petition on the District and unilaterally set a hearing date on the petition of May 16, 2008.

John attempts to justify her noncompliance with rule 3.110(b) by arguing said rule applies only to civil complaints, not to petitions for writ of administrative mandate. In so doing, she substituted her legal interpretation of rule 3.110(b) for that of Judge Yaffe, at her peril.

Rule 3.110 clearly states at subdivision (a): This rule applies to the service of pleadings in civil cases except for collections cases under rule 3.740(a), unlawful detainer actions, proceedings under the Family Code, and other proceedings for which different service requirements are prescribed by law. (Italics added.) A petition for writ of administrative mandate ( 1094.5) is a civil pleading. Moreover, section 1096 states: The writ must be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the Court. Therefore, as Judge Yaffe advised John, she was obligated to serve her mandamus petition within the 60-day period prescribed by rule 3.110(b).

In an attempt to show the dismissal of the instant petition was unwarranted, John also invokes a favorable ruling by Judge Janavs in the related case. There, the trial court rejected the Districts laches argument, finding the District had failed to show it suffered any prejudice as a consequence of Johns one-year delay in serving the petition. However, Judge Janavss ruling in that regard has no bearing on whether Judge Yaffe abused his discretion in dismissing the instant petition.

Here, in view of Johns flagrant disregard of her obligation to serve her petition on the District within 60 days of filing (rule 3.110(b)) or even thereafter, we perceive no abuse of discretion in the trial courts order of dismissal.

4. No merit to Johns claim she is entitled to relief from mistake.

John further asserts the trial court should have granted her relief under section 473, subdivision (b) on the ground of mistake. The contention does not detain us.

The notice of appeal specified the February 14, 2008 order of dismissal. Therefore, the June 20, 2008 order denying Johns motion for relief under section 473, which order was separately appealable (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, 200, p. 276), is beyond the scope of this appeal.

Further, and in any event, John failed to show her noncompliance with rule 3.110(b) was due to mistake. Rather, Johns noncompliance was the result of her substituting her judgment for that of Judge Yaffe, who plainly admonished her regarding the need to serve the mandamus petition upon the District.

DISPOSITION

The February 14, 2008 order of dismissal is affirmed. The District shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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[1] Unless otherwise specified, all further statutory references are to the Code of Civil Procedure.

Also, all rule references are to the California Rules of Court (Rules).

[2] The sustained charges were: insubordination or willful disobedience; inattention to or dereliction of duty; discourteous, abusive or threatening treatment of the public, employees or students; and work-related dishonesty.

[3] The notice of appeal specified the February 14, 2008 order of dismissal.

[4] In establishing these standards, the Judicial Council shall be guided by the principles that litigation, from commencement to resolution, should require only that time reasonably necessary for pleadings, discovery, preparation, and court events, and that any additional elapsed time is delay and should be eliminated. (Gov. Code, 68603, subd. (a), italics added.)