Sharnese v. Affordable Legal Help
Filed 2/27/12 Sharnese v. Affordable Legal Help CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 FOUR
NYLONDA
SHARNESE,
Plaintiff and Appellant,
v.
AFFORDABLE
LEGAL HELP, INC.
et
al.,
Defendants and Respondents.
B230730
(Los Angeles County
Super. Ct. No. PC048509)
APPEAL from an order of the Superior Court of
County,
Margaret L.
Oldendorf, Judge. Reversed.
Nylonda Sharnese, in pro. per., for
Plaintiff and Appellant.
No appearance for Defendant and
Respondent.
Nylonda
Sharnese appeals from an order of the trial
court dismissing without prejudice her complaint against Affordable Legal
Help, Inc., Edward Madison, Eugene Maryl Lerner, and WorldWin Marketing
Corporation (WorldWin) (collectively respondents). The court dismissed the complaint for
inadequate proofs of service. We
reverse.
FACTUAL AND PROCEDURAL
BACKGROUND
On February 26,
2010,
appellant filed a complaint against Affordable Legal Help, Madison, Lerner,
Jonathan Doe,
title="">[1]
and 20 unknown Doe defendants, alleging breach
of contract, fraud, defamation, and intentional infliction of emotional
distress. Appellant was employed by
Affordable Legal Help from February 1, 2010 to February 16,
2010, as a
liaison between paralegals and clients.
She was responsible for entering client data and ensuring that forms
were properly completed by paralegals.
However, numerous clients allegedly told her they never received any
services from Affordable Legal Help.
Appellant alleged in her complaint
that respondents wrongfully terminated her and breached her contract when she
refused to be part of the scam the company was running, did not pay her for
work performed pursuant to the contract, and falsely accused her of stealing
from the company. Appellant further
alleged that Madison repeatedly assured her that he would
have paralegals work with her, but he never did so. Appellant sought $21,400 in damages.
Appellant filed proofs of service of
Legal Help, Madison, and Lerner. On April
26, 2010,
appellant, represented by counsel, filed a request for entry of default
judgment against respondents.
On the same date, appellant filed an
amendment to her complaint, having discovered that WorldWin was the true name
of one of the Doe defendants. She also
filed a statement of damages, seeking a total of $53,550. The proof of service indicated that the
statement of damages and request for default was served on respondents by
mail.
Appellant filed an amended complaint,
seeking reclassification from a limited to unlimited civil case. On June 3, 2010, the superior court reclassified the
case and transferred it.
On June 21,
2010,
appellant filed a request for entry of default judgment against respondents in
the amended amount of $47,900. On July
19, 2010, the court sent a notice of rejection of appellant’s request for
default, on the grounds that an amended summons was not filed with the amended
complaint, and that appellant needed to file a request for court judgment, not
a request for clerk’s judgment.
At a case management conference on
July 28, 2010, the trial court found that defaults were improperly entered on
April 26, 2010.
title="">[2] The court gave two reasons. First, there was no proof that the statement
of damages was personally served on respondents prior to entry of default, as
required by Code of Civil Procedure section 425.11, subdivision (d).
default against Eugene Maryl Lerner was inappropriate because the court thought
this name did not match exactly the name of a defendant in the original
complaint.
entered on April 26, 2010, to be vacated.
The court further stated that the
amended complaint was filed on April 28, 2010, “adding an additional Defendant,
WorldWin Marketing Corporation, and apparently correcting the name of Defendant
Lerner.” However, the court noted that
no amended summons had been issued in connection with the amended complaint,
and no proofs of service had been filed.
The court thus decided to reject
appellant’s June 21, 2010 request for entry of default “in order for the foregoing
procedural deficiencies to be remedied.”
The court set an Order to Show Cause (OSC) regarding the issuance of an
amended summons and the filing of proofs of service as to the amended complaint
and scheduled a hearing for September 29, 2010.
The court added that, although appellant’s counsel failed to appear at
the July 28 hearing, the court would not set an OSC for sanctions for this
failure.
On August 5, 2010, appellant filed an
amended summons and proofs of service of the amended complaint on
respondents. The proofs of service
indicated that all the respondents were served on May 6, 2010, and were stamped
as received by the court on August 5, 2010.
The parties were served with the amended complaint by delivery to Tina
Berzas, who was described as the owner of Mail ‘N’ More and the “authorized
agent” for each of the respondents.
Appellant also filed a request for
entry of default against respondents and a statement of damages, seeking
$45,800 total damages. Her counsel filed
an affidavit, declaring the following.
He stated that appellant was employed by Affordable Legal Group from
February 1, 2010 to February 16, 2010, as a liaison between clients and
paralegals. During her employment,
appellant spoke with 120 of Affordable Legal Group’s clients, all of whom told
her they had not received any services they contracted for from the
company. Appellant thought that the
company was operating a scam, so she contacted a news station and several
attorneys, but respondents fired her when they found out she was aware of the
scam. Appellant’s counsel further stated
that he had personal knowledge that respondents had received notice of the
pleadings and willfully refused to answer, and that they had closed down the
business address because of appellant’s action, making it impossible to serve
them with the statement of damages. He
also stated that appellant had exercised due diligence in attempting to serve
respondents.
On September 13, 2010, the clerk of
the court issued a notice of rejection, stating that the request for entry of
default was premature as to WorldWin because “Proper proof of service of
summons and complaint and statement of damages has not been filed on added
defendant WorldWin Marketing. A proper
proof of service on remaining defendants for amended summons and statement of
damages has not been filed. Summons was
issued 8/5/10.” The notice further
stated that, “Service to a third party is considered sub service. [¶]
Individual person does not have an agent for service – again it is
considered sub served. [¶] Corporations and businesses may have an agent
for service/process.”
On September 29, 2010, the court held
a hearing. The minutes state that “Court
and counsel confer re incomplete proofs of service and missing proofs of
service as further reflected in the notes of the Court Reporter.” The case management conference was continued
to December 1, 2010, and the court set an OSC regarding “Proper Proofs of
Service or Dismissal” on December 1.
Appellant filed proofs of service as
to the amended summons and statement of damages on December 1, 2010. The documents indicated that the parties were
served on September 25, 2010, by delivery to Berzas, the owner of the private
mailbox company. On all the documents,
the box was checked indicating that service was effected by personal service,
rather than by substituted service.
On December 1, 2010, the court found
the proofs of service “inadequate as further reflected in the notes of the
Court Reporter.” The court thus ordered
the case dismissed without prejudice pursuant to sections 583.130 and 583.150,
California Rules of Court, rule 2.30, Los Angeles Superior Court Rule 7.13,
and Government Code section 68608, subdivision (b). Appellant timely filed a notice of appeal.
The trial
court dismissed this case because of inadequate proofs of service. Pursuant to the relevant sections of the code
of Civil Procedure, “a minimum delay of two years is required before a trial
court can exercise its discretionary dismissal powers. [Citations.]”
(Lyons v. Wickhorst (1986) 42
Cal.3d 911, 915 (Lyons).) Because the case was dismissed less than one
year after the complaint was filed, the court abused its discretion.
Personal service of process may be
effected upon an individual or a corporation by serving someone authorized to
accept service on the individual’s or corporation’s behalf. (§§ 416.10, 416.90; Weil & Brown,
Cal. Practice Guide: Civil Procedure
Before Trial (The Rutter Group 2011) ¶¶ 4:128, 4:140, pp. 4-19 to 4-22.1
(Rutter).) Substitute service may be
effected by “leaving a copy of the summons and complaint during usual office
hours in his or her office or, if no physical address is known, at his or her
usual mailing address, other than a United States Postal Service post office
box, with the person who is apparently in charge thereof, and by thereafter
mailing a copy of the summons and complaint by first- class mail, postage
prepaid to the person to be served at the place where a copy of the summons and
complaint were left.” (§ 415.20,
subd. (a); see Rutter ¶¶ 4:206, 4:218, pp. 4-31 to 4-34.) Although a United States post office box is
excluded, the “usual mailing address” does include private mail boxes. (Hearn
v. Howard (2009) 177 Cal.App.4th 1193, 1201; see Rutter ¶ 4:210, p.
4-32.) The record indicates that service
of process was effected by service on Berzas, the owner of the private mailbox
service.
Sections 583.110 through 583.430,
found in Part 2, title 8, chapter 1.5 of the Code of Civil Procedure, govern
dismissals for delay in prosecution.
Dismissal is mandatory if a defendant is not served within three years
after the action is commenced, or if no proof of service is filed within 60
days after the end of the three-year period.
(§§ 583.210, 583.250.)
Discretionary dismissal is addressed
in sections 583.410 through 583.430, found in article 4 of chapter 1.5. Section 583.410 gives the court discretion to
dismiss an action for delay in prosecution on its own motion “if to do so
appears to the court appropriate under the circumstances of the case.” (§ 583.410, subd. (a).) However, “[s]ection 583.420 of article 4
provides in 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.’” (Hawks
v. Hawks (2006) 141 Cal.App.4th 1435, 1437 (Hawks), italics in original; see also Cal. Rules of Court, rule
3.1340(a) [“The court on its own motion or on motion of the defendant may
dismiss an action under Code of Civil Procedure sections 583.410-583.430 for
delay in prosecution if the action has not been brought to trial or
conditionally settled within two years after the action was commenced against
the defendant.”].) Thus, “‘it is not
within the discretionary power of the trial court to dismiss an action until
two years after it has been filed; a plaintiff may not be penalized for failing
to bring even the least complicated case to trial during this period.’ [Citation.]”
(Cohen v. Hughes Markets, Inc.
(1995) 36 Cal.App.4th 1693, 1698 (Cohen),
quoting General Motors Corp. v. Superior
Court (1966) 65 Cal.2d 88, 98; see also Lyons,
supra, 42 Cal.3d at p. 915.)
Pursuant to these provisions, the
court in Cohen concluded that,
“[b]ecause the instant action was filed November 19, 1991, the trial court
lacked discretion to dismiss the action for lack of prosecution less than two
years later, on August 16, 1993.” (
Similarly, the court in Hawks
reversed an order of dismissal for delay in prosecution where the complaint was
filed on May 5, 2005, and the court dismissed the action on July 19, 2005. (Hawks,
supra, 141 Cal.App.4th at p. 1437.)
Here, the complaint was filed on
February 26, 2010, and the case was dismissed for inadequate service of process
on December 1, 2010. This delay of less
than one year is not an adequate ground for discretionary dismissal.
The trial court cited the following
provisions in dismissing the case:
sections 583.130 and 583.150, California Rules of Court, rule 2.30, Los
Angeles Superior Court Rule 7.13, and Government Code section 68608,
subdivision (b). None of these
provisions provides adequate grounds for dismissal. The record is clear that the court dismissed
the case for inadequate proofs of service, a discretionary dismissal that, as
discussed above, requires a delay of two years.
Sections 583.130 and 583.150 are found
in part 2, title 8, chapter 1.5, article 1, which is the “Definitions and
General Provisions” article for the chapter on “Dismissal for Delay in
Prosecution.” These sections merely set
forth general policies regarding a dismissal for delay in prosecution.
Section 583.130 is a declaration of
the state’s policy that a disposition on the merits is preferred over a
dismissal for delay in prosecution. (
42 Cal.3d 342, 347, fn. 6.) The statute
provides as follows: “It is the policy
of the state that a plaintiff shall proceed with reasonable diligence in the
prosecution of an action but that all parties shall cooperate in bringing the
action to trial or other disposition.
Except as otherwise provided by statute or by rule of court adopted pursuant
to statute, the policy favoring the right of parties to make stipulations in
their own interests and the policy favoring trial or other disposition of an
action on the merits are generally to be preferred over the policy that
requires dismissal for failure to proceed with reasonable diligence in the
prosecution of an action in construing the provisions of this chapter.”
Similarly, section 583.150 sets forth
the policy that chapter 1.5 does not limit the court’s authority to dismiss an
action or impose sanctions under local rules or the court’s inherent
authority. This section states: “This chapter 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.” Nonetheless, the Law Revision Commission
Comments note that the court’s inherent authority may not be exercised contrary
to statute. (Cal. Law Revision Com.
com., 15C West’s Ann. Civ. Proc. Code (2011 ed.) foll. § 583.150, p.
315.)
Moreover, a court’s inherent authority
to dismiss an action should only be exercised “in extreme situations, such as
when the conduct was clear and deliberate, where no lesser alternatives would
remedy the situation [citation], the fault lies with the client and not the
attorney [citation], and when the court issues a directive that the party fails
to obey. [Citation.]” (Del
Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799; see also
discretionary power to dismiss with prejudice has been “tightly circumscribed”
because of the long-standing policy favoring a decision on the merits rather
than on procedural grounds].) The record
here does not indicate that any of these types of extreme situations existed.
Nor do the other provisions cited by
the trial court justify dismissal of the case.
The rules cited by the court address the court’s power to impose
sanctions. California Rules of Court,
rule 2.30(b) provides that, “[i]n addition to any other sanctions permitted by
law, the court may order a person, after written notice and an opportunity to
be heard, to pay reasonable monetary sanctions to the court or an aggrieved
person, or both, for failure without good cause to comply with the applicable
rules.” The instant case involved
involuntary dismissal for failure to prosecute, not the imposition of monetary
sanctions.
The local rule cited by the court is
merely a general provision that allows the court to impose sanctions for the
failure to comply with local rules and court orders. (Super. Ct. L.A. County, Local Rules, rule
3.10.) Even when acting pursuant to its
inherent authority, the court cannot proceed in a manner inconsistent with
statute. (See Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1352 [“[L]ocal
courts may not create their own rules of evidence and procedure in conflict
with statewide statutes.”]; Alvarez v.
Superior Court (2010) 183 Cal.App.4th 969, 982 [“Local court policies and
procedures, as well as local court rules, ‘are only valid to the extent they do
not conflict with existing law.’
[Citation.]”].)
The other provision cited by the trial
court was Government Code section 68608, subdivision (b), which provides as
follows: “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 purposes of
this article.”
“By its terms, Government Code section
68608(b) gives trial courts only those sanctioning powers ‘authorized by
law.’ Under its plain and commonsense
meaning, the phrase, ‘authorized by law,’ incorporates only those sanctioning
powers that the law otherwise establishes, . . . It does not express a legislative intent to
establish an independent sanctioning power.”
(Garcia v. McCutchen (1997) 16
Cal.4th 469, 476.)
In Tliche
v. Van Quathem (1998) 66 Cal.App.4th 1054 (Tliche), the court addressed “the trial court’s authority and
obligations regarding dismissal of a complaint for violation of local fast
track rules.” (Id. at p. 1056.) On appeal,
the court found that “the trial court failed to consider less drastic measures
than dismissal as the first sanction (Gov. Code, § 68608, subd. (b)). Also, the trial court failed to take into
account that service of process is ordinarily within the power of counsel as
opposed to the client; therefore, in the absence of any information to the
contrary, the sanction for failure to serve the complaint within the time
period specified by the local delay reduction rule should, in the first
instance, be levied against the attorney in the form of monetary sanctions and
not against the client by dismissing the case.
[Citation.]” (
The court therefore reversed the order of dismissal. (Ibid.)
As in Tliche, the court here did not consider less drastic measures than
dismissal as the first sanction.
Moreover, the requisite minimum delay of two years did not pass before
the trial court exercised its discretionary dismissal powers. (Lyons,
supra, 42 Cal.3d at p. 915.) The order accordingly must be reversed.
The order of dismissal is
reversed. Appellant shall recover her
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
name="_ftn1" title="">[1]
On April 26, 2010, appellant
asked the court to dismiss the complaint as to Jonathan Doe.
name="_ftn2" title="">[2] The record does not indicate that any
defaults had been entered.
