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Garcia v. McCutchen3/6/1996
STONE (W.A.), Acting P.J.:
Plaintiff, Danny Garcia, appeals from a judgment of dismissal resulting from his counsel's failure to comply with local fast track rules and court orders. He also appeals from the order denying his motion for reconsideration. He claims the trial court abused its discretion.
PROCEDURAL BACKGROUND
On April 23, 1993, plaintiff filed a complaint alleging causes of action for personal injury , general negligence, premises liability and intentional tort. The complaint named seven defendants and included a doe allegation for ten unnamed codefendants who allegedly were involved in a barroom brawl which resulted in plaintiff's injuries. On June 28, 1993, the clerk's office of the Fresno County Superior Court notified plaintiff's counsel he had failed to file a proof of service on all named defendants within the time period prescribed by local rule 5.4A.
On November 1, 1993, counsel was notified of his failure to file an at issue memorandum within 180 days of filing the complaint in compliance with rule 5.6A. He was ordered to appear in person at a status hearing January 19, 1994, pursuant to rule 5.6B, or to make arrangements at least 14 days before the hearing to appear by telephone. He was also ordered, within five days before the status hearing, to file and serve a declaration pursuant to rule 5.7 containing various information necessary for case management, including:
1. A statement that he had complied with the time limits of rule 5.4 regarding service of process, or a detailed explanation why such time limits had not been met, including all efforts to comply with the time limits;
2. A detailed explanation of any reason why an at issue memorandum had not been filed within 180 days after the complaint was filed.
Counsel did not make arrangements to appear by telephone, did not file a declaration pursuant to rule 5.7 and failed to appear as ordered on January 19, 1994, at the status hearing before Judge Kerkorian. Counsel was sanctioned $50 for not appearing and $50 for not filing a declaration. The matter was continued to April 19, 1994, for a hearing on the court's motion to dismiss pursuant to rule 5.10 as a sanction for failure to comply with the time limits of rule 5 and the court's orders. The minute order setting the motion to dismiss advised that counsel's appearance was not required if the at issue memorandum was filed, dismissal was entered or judgment was entered and a conformed copy provided to the department hearing the motion.
Prior to the April 19th hearing, service was accomplished on two defendants, a first amended complaint was filed, defendants' demurrer was sustained with leave to amend and a second amended complaint was filed.
Counsel appeared at the April 19th hearing before Judge Kerkorian, but failed to file a timely declaration, failed to file an at issue memorandum and failed to explain the reasons for failing to comply with rule 5 and the court's previous orders. Counsel was sanctioned $325. The court continued the motion to dismiss until June 21, 1994, and advised counsel:
". . . if this case isn't at issue by the date that I set this matter on June 21st -- and that will be heard in Department One at 9:00 a.m. incidentally . . . you're going to have to show Judge Keyes very good cause why he shouldn't dismiss it."
Prior to the June 21st hearing, several more defendants were served and a demurrer was filed to the second amended complaint. The hearing on the demurrer was before Judge Austin. The demurrer was sustained in favor of one defendant without leave to amend and in favor of two others with leave to amend by Jul
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