Opinion
In this case, we consider the scope of a trial court’s power to dismiss an action for noncompliance with local court rules implementing the 1990 Trial Court Delay Reduction Act (Act) (Gov. Code, § 68600 et seq.). We conclude that, under the governing statutes, a court may not impose this sanction if noncompliance is the responsibility of counsel, not of the litigant. Therefore, we affirm the Court of Appeal judgment, which reversed the trial court’s dismissal of plaintiff’s action.
Facts
In April 1993, plaintiff Danny Garcia filed a complaint in the Fresno County Superior Court seeking damages for injuries he received during an altercation at Henry’s Cantina, a cocktail lounge in Clovis, California. The complaint alleged claims for personal injury, general negligence, premises liability, and intentional tort, and named, among other defendants, Fern and
On November 1, 1993, the clerk served Nunez with a notice pursuant to former rule 5.6B ordering him to appear at a status hearing on January 19, 1994. Former rule 5.6B directed the trial court to order all parties to attend a status hearing if án at issue memorandum was not filed within 180 days after filing of the cоmplaint. The notice ordered Nunez to comply with former rule 5.7, which required counsel for each represented party to file and serve at least five court days before the status hearing a sworn declaration addressing a number of matters, including counsel’s explanation for failing to satisfy the requirements of former rules 5.4 (serving complaint and filing proof of service) and 5.6 (filing at issue memorandum). The notice also ordered Nunez to appear in person unless he was going to be out of the county on the hearing date and he arranged at least 14 days before that date to appear by telephone.
Nunez did not appear at the status hearing on January 19, 1994. Instead, that morning he informed the court he was out of the county in trial, but he did not arrange to appear by telephone. The Honorable Gary R. Kerkorian sanctioned Nunez $50 for failing to appear and $50 for failing to serve and file the required declaration. Judge Kerkorian continued the matter to April 19, 1994, “for hearing on the Court’s sua sponte motion to dismiss the entire action.” The court’s minute order indicated that counsel’s appearance would be unnecessary if an аt issue memorandum was filed, or a dismissal or judgment was entered.
On January 27, 1994, Judge Kerkorian followed up his order by issuing a notice of motion to dismiss the action, citing in the caption former rule
At the hearing on April 19, Judge Kerkorian sanctioned Nunez $300 for not complying with the court’s service and at issue memorandum requirements and $25 for late filing of a declaration explaining his noncompliance. Judge Kerkorian continued the hearing on the dismissal motion to June 21 before the Honorable Dwayne Keyes. He cautioned that, if the case was not at issue by June 21, counsel would “have to show Judge Keyes very good cause why he shouldn’t dismiss it.” Judge Kerkorian’s minute order provided that counsel’s appearance would be unnecessary if an at issue memorandum was filed, or a dismissal or judgment was entered.
In May, Nunez sought and obtained permission to serve summons on several defendants by publication. Also in May, several of the other defendants who had already been served, including the Avilas, filed demurrers to Garcia’s second amended complaint. On June 17, the Honorable Gary S. Austin sustained the demurrer of one defendant without leave to amend. He sustained the demurrer of the Avilas only in part and granted Garcia leave to amend until July 20.
As scheduled, on June 21, four days after the demurrer hearing, a hearing on the motion to dismiss was held before Judge Keyes. Nunez did not appear at the hearing. Judge Keyes granted the motion and dismissed the case without prejudice. Although the dismissal was without prejudice, the statute of limitations would have barred claims alleged in a new complaint.
Acсordingly, after learning of the dismissal, Nunez filed a motion for reconsideration on Garcia’s behalf. In support of the motion, Nunez asserted that the dismissal was based on failure to serve the remaining defendants
At the hearing on the reconsideration motion, Nunez asserted that he had not attended the June 21 hearing on the dismissal motion because he believed that Judge Austin’s order partially sustaining the demurrer “had obviated [the dismissal] hearing, because he gave me an extension to file a third amended complaint for July 20.” Nunez also discussed his efforts to serve the other defendants. Judge Keyes replied: “That does not concern me as much as your cavalier attitude of when you appear in court and when you do not appear in court.” Judge Keyes then denied the motion for reconsideration. His order of dismissal states that he based the ruling on “the moving papers, the lack of opposition papers, and the absence of plaintiff’s counsel
The Court of Appeal reversed the trial court’s ruling, concluding that section 575.2, subdivision (b) (section 575.2(b)), prohibits dismissal as a sanction where noncompliance with local court rules is the fault of counsel, not of the litigant. This section, the court explained, “makes cleаr the legislative intent that a party’s cause of action should not be impaired or destroyed by his or her attorney’s procedural mistakes.” The court found nothing in the Act rendering section 575.2(b) inapplicable. On the contrary, it concluded that the relevant provision of the Act, Government Code section 68608, subdivision (b) (Government Code section 68608(b)), merely incorporates “the general authority granted to the courts by section 575.2, subdivision (a) to impose sanctions, including the sanction of dismissal. The limitation on that authority, as reflected in [section 575.2(b)], that parties not be punished for counsеl’s noncompliance with local rules, is not affected by any contrary expression of intent in [Government Code section 68608(b)].”
We then granted review to resolve an apparent conflict between the Court of Appeal’s decision and the decision in Intel Corp. v. USAIR, Inc. (1991)
In 1982, the Legislature gave courts express statutory power to adopt local rules “designed to expedite and facilitate the business of the court.” (§ 575.1.) At the same time, it enacted section 575.2, subdivision (a), which permits a court’s local rules to prescribe sanctions, including dismissal of an action, for noncompliance with those rules. Section 575.2(b), on which the Court of Appeal relied, 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.”
Courts have interpreted section 575.2(b) as “sharply limit[ing] penalties in instances of attorney negligence.” (State of California ex rel. Public Works Bd. v. Bragg (1986)
The Avilas do not challenge this judicial construction of section 575.2(b). Rather, they contend that a trial court’s power under Government Code section 68608(b) to dismiss an аction for violation of local fast track rules is not subject to the limits of section 575.2(b). Government Code section 68608(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
The Avilas’ construction of these provisions violates several rules of statutory interpretation. As in any case involving statutory interpretation, “[o]ur first step is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning. [Citations.]” (People v. Valladoli (1996)
The Avilas’ interpretation also violates the rule of statutory interpretation that requires us, if possible, to give effect and significance to every word and phrase of a statute. (Steinberg v. Amplica, Inc. (1986)
Finally, the Avilas’ interpretation runs counter to the rule regarding repeal by implication. “[A]ll presumptions are against a repeal by implication. [Citations.]” (Flores v. Workmen’s Comp. Appeals Bd. (1974) 11 Cal.3d
To support their interpretation, the Avilas invoke the principle that “specific statutory provisions relating to a particular subject will govern, as against a general provision, in matters concerning that subject.” Citing Intel, they assert that, because Government Code section 68608(b) is the more specific statute regarding delay reduction, it “controls over” section 575.2(b). In Intel, the court considered section 575.2(b)’s application to fast track cases in light of Government Codе section 68608(b)’s predecessor, Government Code former section 68609, subdivision (d). That section provided in relevant part: “In order to enforce the requirements of an exemplary delay reduction program and orders issued in cases assigned to it, the judges of the program 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.” (Stats. 1988, ch. 1200, § 1, pp. 4008-4009.) The court held that, notwithstanding section 575.2(b), dismissal for noncompliance with local delay reduction rules was proper, stating: “While [section 575.2(b)] is concerned with penalties for violation of any local rules, the Government Code provision addresses imposition of sanctions for violation of local delay reduction rules. The Government Code provision is clearly more narrowly circumscribed and specific than [section 575.2(b)], and is therefore controlling.” (Intel, supra,
The Avilas have incorrectly applied this principle of statutory construction. Initially, we question the assertion that Government Code section 68608(b) is the more specific provision. Although that section applies specifically to delay reduction programs, it speaks only generally about a
In any event, “[t]he principle that a specific statute prevails over a general one applies only when the two sections cannot be reconciled. [Citations.]” (People v. Wheeler (1992)
The Avilas additionally insist that, as a matter of public policy, the power to dismiss actions when counsel violate fast track rules is necessary to further the public’s interest in reducing litigation delay. They assert: “[A]ny delay in the resolution of litigation severely undermines the public confidence in the fairness and utility of the judiciary as a public institution since delay in the process reduces the chance that justice will be done and imposes severe hardships on the litigants.” To support their assertion, they partially quote the following legislative findings and conclusions that were part of the original Trial Court Delay Reduction Act of 1986 (1986 Act): “(a) The
For two reasons, we reject the Avilas’ claim. First, the general policy underlying legislation “cannot supplant the intent of the Legislature as expressed in a particular statute. [Citation.]” (Fuentes v. Workers’ Comp. Appeals Bd. (1976)
Second, the Avilas are incorrect in suggesting that either the 1986 Act or the current Act directs that the goal of delay reduction take precedence over all other considerations. On the contrary, in the part of Government Code former section 68601, subdivision (c), that the Avilas have failed to quote, the Legislature recognized “the strong public policy that litigation be disposed of on the merits wherever possible.” (See Hocharian v. Superior Court (1981)
Finally, we find unpersuasive thе Avilas’ assertion that an expanded dismissal power regarding fast track rules is necessary to promote calendar control. Courts have numerous other methods for maintaining control of their calendars. Under section 1209, subdivision (a)5, “[disobedience of any lawful. . . order ... of the court” constitutes contempt. (See In re Young (1995)
In any event, the Avilas’ interpretation of Government Code section 68608(b) might result in a proliferation of malpractice suits against counsel that would hinder, rather than promote, calendar control. This possibility was one of the concerns the Senate Committee on the Judiciary cited in recommending that the Legislature adopt section 575.2(b). The committee explained; “While the client would likely have a malpractice cause of action against a lawyer whose misconduct resulted in dismissal or default, that remedy would be counter productive, since it would result in even more complicated litigation, further clogging the courts.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3784 (1981-1982 Reg. Sess.) as amended Aug. 5, 1982, pp. 3-4.)
As our discussion demonstrates, granting a trial court power to dismiss an action where counsel alone is responsible for noncompliance with local rules would be a significant change in the law. Nothing in either the statutory language or the legislative history of the Act reflects a legislative intent to override section 575.2(b)’s limits on a court’s sanctioning powers or to
Disposition
The judgment of the Court of Appeal is affirmed.
George, C. J., Mosk, J., Kennard, J., Baxter, J., Werdegar, J., and Brown, J., concurred.
Notes
Except as otherwise indicated, all further rule references are to the Superior Court of Fresno County Rules. A revised set of local rules for Fresno County took effect January 1, 1997.
Except as otherwise indicated, all further statutory references are to the Code of Civil Procedure.
The caption also cited section 583.410 and California Rulеs of Court, rule 372, which address discretionary dismissal for delay in prosecuting an action that has been pending at least two years. Garcia’s action did not satisfy this requirement, and the trial court ultimately did not dismiss it under these provisions.
We disapprove Intel and dictum in Laguna Auto Body v. Farmers Ins. Exchange (1991)
The Legislature repealed the 1986 Act, including Government Code former section 68601, in 1990 when it enacted the current version of the Act. (Stats. 1990, ch. 1232, § 2, p. 5140.) The Avilas also rely heavily on the amended version of another repealed provision of the 1986 Act, Government Code former section 68612. That section permitted a court’s delay reduction rules to be “inconsistent with thе California Rules of Court,” to “impose procedural requirements in addition to those authorized by statute,” and to “shorten any time specified by statute for performing an act.” (Stats. 1988, ch. 1200, § 3, p. 4009.) Because the current Act contains no similar authorization, the repealed statute and the cases construing it are no longer relevant. (See La Seigneurie U.S. Holdings, Inc. v. Superior Court (1994)
In analogous contexts, the Legislature has also recognized the public interest in disposition of cases on the merits. (See, e.g., § 583.130 [“Except as otherwise provided by statute or by rule of court adopted pursuant to statute, ... the poliсy favoring trial or other disposition of an action on the merits [is] 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.”].)
The court may fine the contemner up to $1,000 and, if the contemner is subject to the disobeyed order “as a party to the action,” may order the contemner to pay to the party initiating the contempt proceeding the reasonable attorney fees and costs incurred in that procеeding. (§ 1218, subd. (a).) The court may also imprison the contemner for up to five days (§ 1218, subd. (a)) and, if “the contempt consists of the omission to perform an act which is yet in the power of the [contemner] to perform,” may order the contemner “imprisoned until he or she has performed it. . . .” (§ 1219, subd. (a).)
Section 128.5 currently applies only to actions, like Garcia’s, filed before December 31, 1994. (§ 128.5, subd. (b)(1).) As to actions filed after that date, the Legislature has suspended operation of section 128.5 until January 1, 1999, substituting in its place on a trial basis section 128.7, which was modeled on rule 11 of the Federal Rules of Civil Proсedure, (Crowley v. Katleman (1994)
Adoption of section 177.5 directly influenced the Legislature’s decision to limit judicial power under section 575.2 to impose sanctions for noncompliance with local rules. The Senate Committee on the Judiciary cited the availability of monetary sanctions under section 177.5 аs a justification for proposing the addition of subdivision (b) to section 575.2. The committee explained: “[Last] week this committee passed [Assembly Bill No. 3573,] ... a bill that would allow courts to fine lawyers up to $1,500 for failing to comply with court orders. It would appear, therefore, that authorizing courts to indirectly penalize lawyers by dismissing causes of action under this bill would be superfluous should [Assembly Bill No.] 3573 become law.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3784 (1981-1982 Reg. Sess.) as amended Aug. 5,1982, p. 4.) At the request of amicus curiae Pacific Software Services, Inc., we take judicial notice of the committee’s report. We also take judicial notice of the legislative reports the Avilas have submitted, and of legislative reports relating to other relevant statutes. (Evid. Code, §§ 452, 459; see also People v. Cruz (1996)
In their reply brief, the Avilas for the first time assert, with little argument in support, that the phrase “authorized by law” in Government Code section 68608(b) includes a “trial court’s inherent authority to dismiss cases for disobedience of its orders.” Obvious reasons of fairness militate against our considering this poorly developed and untimely argument. (People v. Rodrigues (1994)