Souza v. Kona Coast Resort Owners’ Assn.
Filed
7/18/12 Souza v. Kona Coast Resort
Owners’ Assn. CA5
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opinion has not been certified for publication or ordered published for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
FIFTH
APPELLATE DISTRICT
MANUEL JOHN SOUZA, JR.,
Plaintiff and
Appellant,
v.
KONA COAST RESORT OWNERS
ASSOCIATION et al.,
Defendants and
Respondents.
F062742
(Fresno
Sup. Ct. No. 08CECG03239)
APPEAL from
a judgment of the Superior Court of
County. F. Brian Alvarez, Judge.
Rodney C.
Haron for Plaintiff and Appellant.
Law Offices
of Thomas J. Burns and Robert Bassett for Defendants and Respondents.
-ooOoo-
Appellant
Manuel John Souza, Jr., a Central California resident, appeals from an order of
dismissal without prejudice in a negligence
action arising from personal injuries sustained at a condominium complex in
the State of Hawaii. The superior
court’s December 16, 2010, minute order of dismissal followed the superior
court’s January 20, 2010, formal order staying the action on the grounds of an
inconvenient forum (Code Civ. Proc., §§ 396b, subd. (a), 410.30). We affirm.
STATEMENT OF THE CASE
On
September 19, 2008, appellant Manuel John Souza, Jr., filed a first amended
complaint in Fresno Superior Court for
premises liability in the State of Hawaii.
Resort Owners Association, Shell Vacations LLC, Keauhou Gardens, Jerry and Mary
Goggin, and Does 1 to 100 as defendants and prayed for monetary relief.
On October
30, 2009, respondents Shell Vacations LLC and Kona Coast Resort Owners
Association filed a motion contesting venue.
On January
20, 2010, the court filed a tentative
ruling granting the motion of Kona Coast Resort Owners Association and Shell Resorts
LLC.
On October 12, 2010, the court
continued a case status conference for further proceedings on an order to show
cause and advised appellant’s counsel that the matter would be dismissed if the
defendants were not served or a motion for change of venue was not filed.
On December 15, 2010, appellant’s
counsel filed a declaration in opposition to the order to show cause.
On December 16, 2010, the court
conducted a contested hearing on the order to show cause and ruled by an order
to show cause minute order: “This case is dismissed without prejudice.â€
On June 13, 2011, appellant filed a
2010, minute order dismissing the action without prejudice.
On September 27, 2011, appellant
filed a motion requesting that this court take judicial notice of the
applicable statutes of limitations
for the commencement of personal injury actions in the Hawaii and
Illinois. On October 14, 2011,
respondents filed written opposition to the motion on the ground that
application of the statutes of limitation of Hawaii and Illinois was never
properly raised before the trial court.
On October 18, 2011, this court deferred ruling on the motion pending
consideration of the appeal on its merits.
On December 22, 2011, appellant
filed another motion requesting this court take judicial notice of the
reporter’s transcript of recorded proceedings in this action held in Fresno
Superior Court on December 16, 2010.
!(Manila Folder)! On January 10,
2012, this court deferred ruling on this second motion for judicial notice
pending consideration of the appeal on its merits.
STATEMENT
OF FACTS
title="">[5]
In August
2006, appellant rented a condominium in the Keauhou Gardens Kona Coast Resort
(“Resortâ€) in Kailua-Kona, Hawaii. The
Resort offered condominiums on a timeshare basis. Appellant’s rental agreement was for the
period September 15 through 22, 2006. On
September 19, 2006, appellant descended a staircase in the common area of the
Resort. The stair step tilted forward,
appellant lost his balance, and he fell down the remaining seven steps to the
landing at the base of the staircase.
Appellant sustained injuries to his back and ankle, necessitating
immediate and long term care and medical treatment.
DISCUSSION
I.
THE SUPERIOR COURT HAD JURISDICTION OVER AN ACTION
ARISING FROM PERSONAL INJURIES SUSTAINED IN ANOTHER STATE
A question arises as to
whether the superior court had jurisdiction in this matter because the
underlying injuries took place outside the territorial limits of California.
A court of this state may
exercise jurisdiction on any basis consistent with the Constitution of
California or the United States. (Code
Civ. Proc., § 410.10.) This statute
manifests an intent to exercise the broadest possible jurisdiction, limited
only by constitutional considerations.
The federal constitution
permits a state to exercise jurisdiction over a nonresident defendant if the
defendant has sufficient minimum contacts with the forum such that maintenance
of the suit does not offend traditional notions of fair play and substantial
justice. The substantial connection
between the defendant and the forum state necessary for a finding of minimum
contacts must come about by an act of the defendant purposefully directed
toward the forum state. (
35 Cal.4th 1054, 1062; Roman v. Liberty
University, Inc. (2008) 162 Cal.App.4th 670, 677-678; Archdiocese of Milwaukee v. Superior Court (2003) 112 Cal.App.4th
423, 435.) Stated another way, the forum
state may not exercise jurisdiction over a nonresident unless his or her
relationship to the state is such as to make the exercise of such jurisdiction
reasonable. (Integral Development Corp. v. Weissenbach (2002) 99 Cal.App.4th
576, 583.)
California law reflects an
overriding state policy of assuring California residents an adequate forum for
the redress of grievances. (
162 Cal.App.4th 122, 129.) On
October 30, 2009, respondents filed a motion contesting venue, as opposed to
the jurisdiction of the superior court.
Franson, Jr., judge of the superior court, heard arguments on the motion and
adopted his tentative ruling, which stated:
“Defendants have incorrectly characterized and addressed this motion as
one contesting venue based on California Code of Civil Procedure (CCP) section
396b. CCP section 410.30(a) states:
‘When a court upon motion of a party or its own motion finds that in the
interest of substantial justice an action should be heard in a forum outside
this state, the court shall stay or dismiss the action in whole or in part on
any conditions that may be just.’ A state court cannot transfer venue to
another state; it must dismiss the action (outright or conditionally) or stay
the action. (Thomson v. Continental Ins. Co. (1967) 66 Cal.2d 738,
744.) The preference is for stay rather
than dismissal. (Ferreira v. Ferreira (1973) 9 Cal.3d 824, 841.)
“There are two general categories of inconvenient forum factors. They
are: (1) whether the alternate forum is
a suitable place for trial; and if so, (2) the private interest of the
litigants and the interest of the public in retaining the action for trial in
California. (Stangvik v. Shiley (1991) 54 Cal.3d 744,750.) As to the first factor and a defendant’s
choice to incorporate or do business in California, there is a presumption of
convenience to a defendant that follows from residence in California, but it is
not conclusive, and a resident defendant may overcome it by evidence that the
alternate jurisdiction is a more convenient place for trial. (Id. at 756.) As to the second factor, the private interest
issues are those that make trial and the enforceability of the ensuing judgment
expeditious and relatively inexpensive, such as the ease of access to sources
of proof, the cost of obtaining attendance of witnesses, and the availability
of compulsory process for attendance of unwilling witnesses. (Id. at 751.) The public interest factors include avoidance
of overburdening local courts with congested calendars, protecting the
interests of potential jurors so that they are not called upon to decide cases
in which the local community has little concern, and weighing the competing
interests of California and the alternate jurisdiction in the litigation. (Ibid.) The cumulative
connection of the defendant and its conduct within the state is relevant in
deciding whether retention of an action would place an undue burden on the
courts, a court cannot look only to such circumstances; matters like the
complexity of the case, whether it would consume considerable court time, and
the condition of the court’s docket also are relevant to the issue. (Id. at 761.)
“For the first factor, although plaintiff is a resident of Fresno and
his
medical
treatment has been conducted in Fresno, this is a premises liability
action[,] the
premises are in Hawaii, the premises need to be inspected, and
defendants’
witnesses are in Hawaii. Thus, these
facts show that the alternate forum is very suitable for trial. Also, defendants are not California
residents. Kona Coast is a nonprofit
association with a principal place of business in Kailua-Kona, and Shell is a
Delaware limited liability company, with a business address in Illinois. Thus these facts show that the alternate
forum is suitable for trial. As to the
second factor, Hawaiians have a stronger interest in a premises liability
action involving plaintiff’s vacation at a Hawaiian condo, and defendants have
much more extensive contacts with Hawaii than with California.â€
Code of Civil Procedure section 904.1,
subdivision (a)(3) states: “An appeal, other than in a limited civil case, may
be taken from any of the following: … (3) From an order … granting a motion to
stay the action on the ground of inconvenient forum .…†In this case, appellant did not appeal from
the superior court’s January 13, 2010, law and motion minute order or January
20, 2010, formal order granting respondents’ motion to stay the action on the
ground of inconvenient forum. Rather, on
June 13, 2011, appellant appealed from the December 16, 2010, minute order
dismissing the action.
“California follows a ‘one shot’ rule
under which, if an order is appealable, appeal must be taken or the right to
appellate review is forfeited.†(
Cal.4th 751, 761, fn. 8.) The powers of
a reviewing court do not include the power to review any decision or order from
which an appeal might have been taken but was not. (Id.
at p. 761, fn. 8, citing Code Civ. Proc., § 906.) If a judgment or order is appealable, an
aggrieved party must file a timely appeal
or forever use the opportunity to obtain appellate review. (Silver
v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 693.)
Appellant did not file a timely notice
of appeal from the superior court’s January 13, 2010, minute order or January
20, 2010, formal order granting respondents’ motion to stay the action on the
ground of inconvenient forum. Thus,
review of the stay order is no longer available. However, review of the dismissal order is
available.
II.
THE SUPERIOR COURT DID
NOT ERRONEOUSLY DISMISS THE STAYED ACTION WHERE IT COULD NOT BE PROSECUTED IN
AN ALTERNATE FORUM
Appellant contends the trial court
erroneously dismissed the stayed action because it could not be prosecuted in
an alternate forum.
Appellant specifically contends a
motion for forum non conveniens presupposes that a suitable alternate forum
exists. He maintains that, at the time
the action was stayed, neither Hawaii nor Illinois was a suitable alternate
forum because the respective two-year statutes of limitation had run in those
states. He further contends that proof
that all defendants are subject to jurisdiction in the alternate forum is a
prerequisite to granting a motion for forum non conveniens. Appellant’s contention creates a quandary at
this stage of the proceedings because appellant did not timely challenge the
trial court’s January 20, 2010, stay order, which was independently appealable.
Declaration
of Appellant’s Counsel in Opposition to Order to Show Cause
On December 15, 2010, appellant’s counsel
filed a declaration in superior court stating:
“2. [Plaintiff has] been trying to resolve
this dilemma. First, extensive legal
research was done on the issue of transferring this matter to Federal Court,
unfortunately, said transfer motion can only be filed by the Defendant and only
then if it is done within sixty days of service;
“3. We researched the viability of
transferring this matter to Simi Valley[,] California, the last address of an
in state designated agent for service of process, said agent having resigned
prior to the filing of this action, or alternatively to Sacramento, California
where the Secretary of State resides and is proper agent for service of a
corporation without a designated agent within the State. However, since this corporate agent has been
served and appeared without making a special appearance, it would appear that
the proper venue in this matter is actually Fresno[,] California as to the
moving defendants but the court has ruled it an inconvenient forum.
“4. Ultimately, we see no way to transfer
venue in this matter given [J]udge Franson’s order staying the matter. It appears to us the only avenue left open to
us is to serve [t]he remaining defendants, and ask that they file a motion to
transfer this matter to federal court.
Such transfer motion is only available to the defendant and is not
available to the plaintiffs. Further,
the moving defendant must make such a motion within thirty days of service or
they [lose] their ability to do the same.
That would mean[] the only defendants that can possibly file a motion to
transfer are the remaining defendants.
However, again, there is currently a stay of this matter in place and we
are unable to serve the other defendants to accomplish this.
“5. Therefore, the plaintiff respectfully
requests that the Honorable Judge Alvarez lift the stay to allow the plaintiffs
to serve all other defendants in this matter.
Otherwise, the plaintiff’s hands are tied.â€
At the December 16,
2010, contested hearing, appellant repeatedly requested the court for
permission to appear before Judge Franson to address the issue of the
stay. However, the trial court noted
that December 16 was Judge Franson’s last day on the trial bench and granted
the dismissal without prejudice.
B.
Substantive
Law of Forum Non Conveniens
“Forum non conveniens is an equitable doctrine
invoking the discretionary power of a court to decline to exercise the
jurisdiction it has over a transitory cause of action when it believes that the
action may be more appropriately and justly tried elsewhere. [Citations.]â€
(Stangvik v. Shiley, Inc.,
Civil Procedure section 410.30. The
party bringing a motion to stay or dismiss based on forum non conveniens bears
the burden of proof (
Cal.3d at p. 751) and must show that “California is a seriously inconvenient
forum.†(Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th
604, 611.)
The court deciding the motion must first determine whether the
alternative forum proposed by the moving party is a “ ‘suitable’ â€
place for trial. (Stangvik v. Shiley, Inc., supra, 54 Cal.3d at p. 751.) This threshold requirement is satisfied if
the defendant is subject to or agrees to submit to the jurisdiction of the
alternative forum, the statute of limitations has not expired in the
alternative forum, or the defendant agrees not to rely on it, and some remedy
is available in the alternative forum. (
Cal.App.4th 1180, 1186.) The court’s
determination on this issue is reviewed de novo. (Roulier
v. Cannondale, supra, at p.
1186.)
If the court finds the alternative
forum suitable, “the next step is to consider the private interests of the
litigants and the interests of the public in retaining the action for trial in
California.†(Stangvik v. Shiley, Inc., supra, 54 Cal.3d at p. 751.) Courts reviewing the public and private
interest issues have listed as many as 25 factors to be considered. (Great
Northern Ry. Co. v. Superior Court (1970) 12 Cal.App.3d 105.) The California Supreme Court has summarized
the key factors:
“The private
interest factors are those that make trial and the enforceability of the
ensuing judgment expeditious and relatively inexpensive, such as the ease of
access to sources of proof, the cost of obtaining attendance of witnesses, and
the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance
of overburdening local courts with congested calendars, protecting the
interests of potential jurors so that they are not called upon to decide cases
in which the local community has little concern, and weighing the competing
interests of California and the alternate jurisdiction in the litigation. [Citations.]â€
(Stangvik v. Shiley, Inc., supra,
54 Cal.3d at p. 751.)
The choice of a California forum by a
resident plaintiff is an important private interest factor. An action brought by a California resident
may not be dismissed on forum non conveniens grounds except in “extraordinary
circumstances.†(Century Indemnity Co. v. Bank of America (1997) 58 Cal.App.4th 408,
411.) Even in considering only a stay, the
court must give substantial weight to a resident plaintiff’s choice of
forum. (Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12
Cal.App.4th 1666, 1675; see also Ford
Motor Co. v. Insurance Co. of North America, supra, 35 Cal.App.4th at p.
610; Northrop Corp. v. American Motorists
Ins. Co. (1990) 220 Cal.App.3d 1553, 1561.)
The court’s balancing of the public and private interest factors is
entitled to substantial deference, and we review it for abuse of
discretion. (Stangvik v. Shiley, Inc., supra, 54 Cal.3d at p. 751;
Cal.App.4th at p. 1188.)
“A court has exercised its discretion
appropriately when ‘the act of the lower tribunal is within the range of
options available under governing legal criteria in light of the evidence
before the tribunal.’ [Citation.] In
exercising its discretion, however, the court must bear in mind that the moving
party bears the burden of proving that California is an inconvenient forum.… [¶] … [¶]
[T]he inquiry is not whether [the other state] provides a
whether California is a seriously
Unless defendants met their burden, the trial court necessarily abused
its discretion.†(Ford Motor Co. v. Insurance Co. of North America, supra, 35
Cal.App.4th at pp. 610-611, original italics.)
C.
Procedural
Law of Appeal
With respect to the order of
dismissal, the defendant has the burden of proof in a forum non conveniens
motion. In analyzing such a motion, the
first step is determining whether the alternate forum is a suitable place for
trial. (Hahn v. Diaz-Barba, supra,
forum for the action is critical. (
1452, 1464.) If it is a suitable place,
the next step is to consider the private interests of the litigants and the
interests of the public in retaining the action for trial in California. The threshold issue of whether an alternative
forum is suitable is nondiscretionary, subject to de novo review. The threshold issue of suitability is
determined by a two-pronged test. First,
there must be jurisdiction over the defendant.
Second, there must be assurance that the action will not be barred by a
brought, although not necessarily won. (
Cal.App.4th at p. 1187.)
“It is well settled under
California law that the moving parties satisfy their burden on the threshold
suitability issue by stipulating to submit to the jurisdiction of the
alternative forum and to waive any applicable statute of limitations. Our courts rely on the Judicial Council
comment to section 410.30, which declares that a forum is suitable if the
defendant can be subjected to the jurisdiction of the courts in the alternative
forum and the statute of limitations poses no bar. [Citations.]â€
(Hahn v. Diaz-Barba, supra, 194
Cal.App.4th at p. 1190.)
Ordinarily an action cannot be
dismissed on the ground of inconvenient forum.
This rule reflects an overriding state public policy that assures
California residents that they can obtain redress for their grievances in
California courts, which are maintained for their benefit. (Beckman
v. Thompson (1992) 4 Cal.App.4th 481, 487.)
The record on appeal in this case does not include respondents’ motion
to contest venue and supporting papers, appellant’s written opposition to the
motion and supporting papers, or a reporter’s transcript of the contested
hearing conducted by Judge Franson on January 13, 2010. Therefore, we cannot precisely ascertain what
source materials led the superior court to grant the stay, stating in relevant
part: “ … Hawaiians have a stronger interest in a premises liability action
involving plaintiff’s vacation at a Hawaiian condo, and defendants have much
more extensive contacts with Hawaii than with California.â€
Although appellant’s counsel
claimed his client’s hands were “tied†after Judge Franson’s ruling, the record
does not reflect any specific action by appellant to address the stay between
January 20, 2010 (the date of Judge Franson’s formal order) and December 15,
2010 (the date of appellant’s counsel’s declaration in opposition to order to
show cause). The superior court docket
does not indicate that appellant moved for reconsideration, applied for some
other form of relief in the trial court, or filed a notice of appeal to
challenge Judge Franson’s order, as permitted under Code of Civil Procedure
section 904.1, subdivision (a)(3).
Moreover, to conclude that the trial court erred in granting the stay
would require some measure of speculation on the limited record on appeal
before us in this appeal.
At the contested December 16, 2010,
hearing before Judge Alvarez, respondents’ counsel observed that a motion for
reconsideration or a transfer of the matter to federal court could have been
accomplished within the preceding year.
Respondents’ counsel further acknowledged: “Quite frankly, this case
should have been brought in Hawaii where this accident happened .… And so at this point … that’s the issue that
keeps coming up. And there’s been ample time
for this Court. [T]here was a notation
on the last court entry in the docket, that if this matter wasn’t transferred,
that it was going to be dismissed today.â€
Respondents’ counsel went on to say: “I respectfully request that the
matter be dismissed as to all defendants without prejudice .…â€
As with any rule based in equity,
there may be rare situations in which dismissals are warranted even though
there is no alternative forum.
name="_ftnref7" title="">[7] (Delfosse
v. C.A.C.I., Inc.-Federal, supra,
218 Cal.App.3d at p. 690, fn. 5.)
“[W]hile California’s policy favors
trial on the merits, there comes a time when that policy is overridden by
California’s policy requiring dismissal for failure to prosecute with
reasonable diligence. As this is true
for any action prosecuted in
California courts, it must be true for an action initially filed in California
court but stayed on forum non conveniens grounds. In short, California’s interest in assuring
an adequate forum for a California plaintiff is not absolute, and can be
overcome when the plaintiff is unreasonably dilatory in prosecuting the action
in the convenient forum. If, by a
California plaintiff’s lack of reasonable diligence in prosecuting its action,
California has lost its interest in providing an adequate forum, an action
originally stayed on forum non conveniens grounds may therefore be dismissed.†(Van
Keulen v. Cathay Pacific Airways, Ltd., supra,
162 Cal.App.4th at p. 130, original italics.)
On October 12, 2010, the superior court issued a minute
order stating: “Motion for continuance
granted[.] Court orders motion for
continuance granted as to 12-16-10 9:06
Rm 401for OSCD, this will be the last
continuance, if not served or a mtn for change of venue is done case will be
dismissed.†At the December 16,
2010, hearing, defense counsel stated: “[T]his has been on the dismissal
calendar for a year. All of these issues
that are being discussed were addressed in the underlying motion. …I have contacted my client after each of the
dismissal hearings – and I believe there’s been four or five. I contacted my client in regards to this
case. [¶] … And I would request that the Court go
through – there was a notation on the last court entry in the docket, that if
this matter wasn’t transferred, that it was going to be dismissed today. And I would ask that the Court follow through
with it.†Although the trial court did
not expressly raise the issue of failure to prosecute, the court did observe at
the December 16, 2010, hearing: “[T]his matter is 820 days old. And … there’s never been any service.â€
The policy of preferring to dispose
of litigation on the merits only comes into play when a plaintiff makes a
showing of some excusable delay. A
reviewing court may not reverse a trial court’s order granting dismissal for
dilatory prosecution unless the plaintiff meets the burden of establishing
manifest abuse of discretion resulting in a miscarriage of justice. An appellate court may not substitute its own
discretion for that of the trial court and must uphold the dismissal order if
the trial court has not abused its discretion.
(Van Keulen v. Cathay Pacific
Airways, Ltd., supra, 162
Cal.App.4th at p. 131.)
Respondent observes: “[A]t the time
of the action’s dismissal, almost four and a half years after Appellant’s
accident and almost two and a half years after the commencement of the case,
Appellant had failed to file any motion to transfer venue, had failed to serve
half of the defendants, and had failed to file any motion to lift the stay
imposed by the trial court in January 2010.
There is no evidence in the
record showing that Appellant gave a reasonable explanation to the trial court
as to why he could not proceed in Hawaii (or elsewhere), nor any evidence that
he could not, in fact, have proceeded in an alternate forum….â€
Appellant contends the trial court
lacked authority to dismiss the stayed action for a failure to service when the
action was pending for only 16 months.
Appellant acknowledges “[a] trial court has discretion to dismiss an
action for delay in prosecution if service is not made on defendant within two
years of the filing of the original complaint or if the matter is not brought
to trial within two years. (
(a)(1), (2)(B).)†(Original
italics.) Appellant nevertheless
contends at length that the trial court has no discretion to dismiss an action
pending for less than two years and that any computation of time for service
must exclude any period where the action was stayed. (Code Civ. Proc., § 583.420, subds. (b),
(d); 583.420, subd. (b).) Appellant’s
contention overlooks the trial court’s October 12, 2010, order, which at the
very least suggested that service of unserved defendants or seeking of an
alternate forum was still permissible, despite the stay. Appellant’s argument about the effect of the
stay essentially relates back to the trial court’s January 20, 2010, order
granting the stay. Appellant declined to
seek review of that order and we have no power to review a decision or order from which
an appeal might have been taken but was not.
Baycol Cases I & II, supra, 51 Cal.4th at p. 761, fn. 8;
supra, 190 Cal.App.4th at p. 693.)
Moreover, in California, there is no requirement that the
trial court make any express ruling on motions to stay or dismiss. With respect to such a motion, the appellate
court reviews judicial action and not judicial reasoning. (Hahn
v. Diaz-Barba, supra, 194
Cal.App.4th at p. 1188.) The minute
order of December 16, 2010, did not set forth the trial court’s reasoning but
simply stated: “This case is dismissed without prejudice.†In reaching this conclusion, the trial court
could have reasonably concluded that appellant did not prosecute the action
with reasonable diligence and failed to make a showing of some excusable delay. Although the clerk’s transcript is somewhat
sketchy, a docket report in the transcript does reflect that appellant
initially filed his complaint on September 17, 2008, and filed a first amended
complaint two days later. The docket
entry dated October 12, 2010, advised plaintiff the action would be dismissed if the defendants were not served or venue
was not changed. On December 15, 2010,
plaintiff’s counsel responded with a declaration stating that his client’s
hands were “tied†and service could not be effected because of the effect of
the stay. Once again, the stay order was
independently appealable but no appeal was taken from the formal order filed
January 20, 2010.
Given the passage of time between the initial filing of the complaint
in September 2008 to the dismissal in December 2010, the trial court did not
abuse its discretion. This is
particularly true in light of the stay order of January 20, 2010, the lapse of
almost nine months after that stay order, the failure of appellant to timely
challenge the stay order in the trial court and in this court, and the grant of
another two-month continuance in October 2010.
The latter continuance – expressly described by the superior court as
“the last continuance†– clearly advised appellant to serve the defendants or
move for a change of venue, subject to penalty of dismissal. No abuse of discretion occurred.
The trial court is directed to enter a judgment of dismissal nunc pro
tunc. The judgment of dismissal is
affirmed.
_____________________
Poochigian, J.
WE CONCUR:
______________________
Wiseman, Acting P.J.
______________________
Levy, J.
name="_ftn1" title="">[1] Although the
record on appeal is not clear on this point, it appears that appellant filed
his action approximately two years after the injuries occurred.
name="_ftn2" title="">[2] Appellant
appealed from the December 16, 2010, minute order dismissing the action without
prejudice. An order of dismissal is an
appealable judgment if it is in writing, signed by the court, and filed in the
action. (Code Civ. Proc., § 581d;
183 Cal.App.4th 559, 565; Etheridge v.
Reins Internat. California, Inc. (2009) 172 Cal.App.4th 908, 913.) The order filed December 16, 2010, was not
signed by the court and therefore did not comply with the requirements of Code
of Civil Procedure section 581d. (
Cal.App.4th 1573, 1577-1578.) On October
13, 2011, this court filed an order directing appellant to correct his brief to
“state that the judgment appealed from is final, or explain why the order
appealed from is appealable.†On October
21, 2011, appellant filed an opening brief stating: “The judgment is
final. It appears the court dismissed
the action for a perceived failure to serve process on all named defendants
within two years or commence the action in an alternative forum and/or the
failure to bring the action to trial within two years.†Appellant’s corrected statement of
appealability did not address the technical requirements of Code of Civil
Procedure section 581d. To promote the
orderly administration of justice, we will order the trial court to enter a
judgment of dismissal nunc pro tunc and will treat the notice as a notice of
appeal from the judgment to be entered.
(Evola v. Wendt Construction Co. (1958)
158 Cal.App.2d 658, 660; Zellers v. State
of California (1955) 132 Cal.App.2d 56, 57; Coe v. City of Los Angeles (1994) 24 Cal.App.4th 88, 91, fn. 3.)
