APPEAL from a judgment of the Superior Court of San Diego County, William S. Cannon, Judge. Affirmed in part; reversed in part; remanded with directions. (Super. Ct. No. GIS9465).
CERTIFIED FOR PARTIAL PUBLICATION
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts III.B., III.C., and III.D.
In April 2002, Barry S. Jameson filed a complaint against Dr. Tadesse Desta, alleging numerous claims stemming from Dr. Desta's allegedly negligent medical treatment of Jameson while Jameson was incarcerated at the Richard J. Donovan Correctional Facility. In September 2005, the trial court granted Dr. Desta's motion to dismiss the case for lack of prosecution on the ground that Jameson had not diligently served Dr. Desta with a summons and complaint. In a prior appeal, this court concluded that the trial court erred in dismissing the action for lack of diligent service. (Jameson v. Desta (July 2, 2007, D047284) [nonpub. opn.] opn. mod. July 26, 2007 (Jameson I).)
On remand, the trial court issued an order authorizing Jameson to appear at court hearings by telephone. The trial court later dismissed the action without prejudice on the ground that Jameson failed to appear telephonically at a case management conference and at a subsequent hearing on an order to show cause. On appeal, Jameson contends that the trial court erred in dismissing the action on this ground.*fn1 Jameson also contends that the trial court erred on remand in failing to enter a default judgment against Dr. Desta, setting aside a clerk's default, and granting Dr. Desta leave to file a verified answer to Jameson's complaint. In addition, Jameson claims that the trial judge erred in failing to disqualify himself. Finally, Jameson contends that the trial court erred in denying his request to recover $1,500 for paralegal fees as a cost on appeal stemming from Jameson I.
An indigent prisoner initiating a bona fide civil action has a "right of meaningful access to the courts to prosecute the action." (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792 (Wantuch).) Trial courts must therefore "ensure indigent prisoner litigants are afforded meaningful access to the courts . . . ." (Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1483 (Apollo).) Among the ways in which meaningful access may be secured is by "conduct[ing] . . . proceedings by telephone." (Ibid.) In this case, we conclude that before a trial court may dismiss an action on the ground that an indigent prisoner has failed to appear telephonically at proceedings in the case, the trial court must find, based on facts in the record, that the prisoner has willfully failed to avail himself of the right to appear telephonically.
In the published portion of this opinion, we conclude that the trial court erred in dismissing the action on the ground that Jameson failed to appear telephonically at a case management conference and at a subsequent hearing on an order to show cause. The record clearly indicates that Jameson notified the trial court on numerous occasions that prison personnel were not allowing him to communicate telephonically with the court, yet the record does not indicate that the trial court made any inquiry into Jameson's contentions. Further, the record does not contain any facts demonstrating that Jameson's failure to appear telephonically at the hearings was willful. On the contrary, the record establishes that Jameson repeatedly made clear his desire to participate in all court proceedings and informed the court that he was not being allowed to do so. Under these circumstances, we conclude that the trial court erred in dismissing the action based on Jameson's failure to appear telephonically.
With respect to the remainder of Jameson's contentions, in the unpublished portions of this opinion, we conclude that the trial court did not err in failing to enter a default judgment against Dr. Desta, setting aside a clerk's default, granting Dr. Desta leave to file a verified answer to Jameson's complaint, or refusing to grant Jameson's request to recover $1,500 for paralegal fees as a cost on appeal stemming from Jameson I. Finally, Jameson's claim that the trial judge erred in failing to disqualify himself is not cognizable on appeal.
Accordingly, we affirm both the trial court's refusal to enter judgment in favor of Jameson, and the trial court's refusal to award Jameson paralegal fees. We reverse the trial court's dismissal of the action, and remand the matter for further proceedings.
II. FACTUAL AND PROCEDURAL BACKGROUND*fn2
A. Proceedings prior to Jameson I
In April 2002, Jameson filed a complaint alleging eight causes of action, including breach of fiduciary duty, professional negligence, general negligence, failure to train, battery, violation of civil rights, intentional infliction of emotional distress, and violation of due process against a number of defendants, including Dr. Desta and officials of the California Department of Corrections and Rehabilitation (Department).*fn3 In his complaint, Jameson alleged that Dr. Desta, working on behalf of the Department, negligently prescribed the drug Interferon to Jameson, and that the drug had caused him to suffer serious physical injuries, including irreversible damage to his eyesight.
In August 2005, Dr. Desta filed a motion to dismiss the case based on delay in prosecution. In his brief in support of his motion to dismiss, Dr. Desta argued that Jameson had failed to diligently serve Dr. Desta with the summons and the complaint. In September 2005, the trial court granted Dr. Desta's motion to dismiss on the ground that Jameson had not been diligent in effecting service on Dr. Desta, and entered judgment in favor of Dr. Desta.
On appeal in Jameson I, Jameson contended that Dr. Desta's signing of an April 19, 2002 notice and acknowledgement of service established that Dr. Desta was timely served by mail, pursuant to Code of Civil Procedure*fn4 section 415.30, and that the trial court was thus not authorized to dismiss the action for lack of diligent service. This court agreed that Jameson had served Dr. Desta pursuant to section 415.30 and concluded that the trial court erred in dismissing the action for lack of diligent service. (Jameson I, supra, D047824.) We reversed the judgment and remanded the matter to the trial court with directions to deny Dr. Desta's motion to dismiss and to set a time within which Dr. Desta must file a responsive pleading to Jameson's complaint. (Ibid.) We also awarded costs on appeal to Jameson. (Ibid.) On September 26, 2007, the clerk of this court issued the remittitur in Jameson I.
On October 10, Dr. Desta filed an unverified answer to Jameson's complaint. On October 29, the trial court entered an order allowing Dr. Desta until November 13, 2007 to file a responsive pleading to Jameson's complaint.
On or about November 15, Jameson filed a request for entry of default and entry of a court judgment.*fn5 On November 15, the trial court clerk entered a default. That same day, Jameson filed a motion for judgment on the pleadings.
On January 10, 2008, the court entered an order providing that Jameson would be allowed to appear at court hearings by telephone in view of his imprisonment. On several occasions thereafter, Jameson informed the trial court that prison personnel were not allowing him to communicate telephonically with the court. (See part III.A., post.)
On January 17, the trial court entered an order setting aside the November 15 default. In its order, the trial court stated that the default had been entered erroneously, noting that Dr. Desta had filed an answer prior to the court's November 13 deadline. On January 18, the trial court clerk sent Jameson a notice of a mandatory case management conference hearing set for March 10.
On January 25, the trial court granted Jameson's motion for judgment on the pleadings, with leave to amend. The court reasoned that Jameson's complaint was verified, and that Dr. Desta's answer therefore had to be verified. The court granted Dr. Desta 20 days to file a verified answer to Jameson's complaint. On or about February 7, Dr. Desta filed a verified answer to Jameson's complaint.
Jameson did not appear telephonically at the March 10 case management conference. On March 12, the trial court clerk sent Jameson a notice regarding an April 18 hearing to consider whether the case should be dismissed.
On April 18, the trial court dismissed the case without prejudice on the ground that Jameson had not telephonically appeared for the March 10 case management conference and the April 18 order to show cause hearing.
Jameson appeals from the trial court's order dismissing the case.*fn6
A. The trial court erred in dismissing the case without ensuring that Jameson had received meaningful access to the court
Jameson claims that the trial court erred in dismissing the case on the ground that he did not appear telephonically at a case management conference and at a subsequent hearing on an order to show cause as to whether the case should be dismissed. Jameson claims that dismissal was improper because he "repeatedly notified the court" that prison officials were not providing him with the ability to communicate telephonically with the court.
1. Governing Law and Standard of Review
A prisoner has a statutory right to initiate civil actions. (Pen. Code, § 2601, subd. (d).) "In the case of an indigent prisoner initiating a bona fide civil action, this statutory right carries with it a right of meaningful access to the courts to prosecute the action." (Wantuch, supra, 32 Cal.App.4th at p. 792.) There are many ways by which a trial court may ensure that a prisoner has meaningful access to the courts, including "conduct[ing] . . . status and settlement conferences, hearings on motions and other pretrial proceedings by telephone . . . ." (Wantuch, supra, 32 Cal.App.4th at p. 793.) A trial court is to exercise its "sound discretion" in determining the appropriate method by which to ensure meaningful access to the court. (Id. at p. 794.) "The exercise of the trial court's discretion will not be overturned on appeal 'unless it appears that there has been a miscarriage of justice.' [Citation.]" (Ibid.)
Applying this law, the Court of Appeal in Wantuch concluded that the trial court had abused its discretion in dismissing the action. The Wantuch court reasoned:
"Wantuch failed to appear at a status conference of which he had notice. As a result of his nonappearance, the trial court ordered a further status conference and a hearing on an order to show cause for failure to prosecute. Wantuch informed the trial court he was serving a lengthy state prison sentence and requested appointment of counsel or transfer to court. Wantuch did not appear at the further status conference and hearing on the order to show cause. The trial court struck Wantuch's pleadings and entered judgment against him. [¶] . . . [¶]
"In this case, the trial court imposed terminating sanctions solely because of Wantuch's failure to appear at the status conference.
Wantuch's nonappearance was not wil[l]ful, but was solely the result of his imprisonment. The status conference could have been conducted by written correspondence or by telephone. In all other respects, Wantuch had diligently prosecuted the matter. He had timely filed and served the complaint, discussed settlement, answered the cross-complaint, sought entry of default where appropriate, filed motions, propounded discovery, moved to compel discovery and filed an at-issue memorandum. The case was little more than a year old. We conclude the trial court abused its discretion." (Wantuch, supra, 32 Cal.App.4th at pp. 794-795.)
The Wantuch court reversed the judgment and remanded the matter. (Wantuch, supra, 32 Cal.App.4th at p. 796.) The Wantuch court stated that, although it appeared from the record that the appellant was indigent, and that the lawsuit constituted a bona fide action involving his property interests, the trial court was to definitively determine these issues on remand. (Ibid.) Assuming that the trial court were to make affirmative findings on these issues, the Wantuch court ordered "the trial court . . . to determine the appropriate remedy or remedies to effectuate Wantuch's constitutional and statutory rights of meaningful access to the courts to prosecute his complaint . . . ." (Ibid.)
In Apollo, supra, 167 Cal.App.4th 1468, the court considered whether a trial court failed to ensure an incarcerated appellant's right to meaningful access to the court prior to entering judgment against him. In Apollo, the trial court held a hearing on the respondent's summary judgment motion. The Court of Appeal described that hearing as follows:
"The reporter's transcript reflects that respondent's attorney appeared in person on her behalf, and that a call was made to the prison so that appellant could appear telephonically. When the court asked whether appellant was on the telephone, an unidentified speaker from the Department of Corrections and Rehabilitation advised that '[t]he inmate is coming back from his housing unit with his documentation.' The following exchange then occurred:
"'[The Court]: Okay. Well. We are going to proceed. It is now 9 minutes after 10:00. And if he is late, that is not our fault. All right. There was a tentative ruling in this matter yesterday. . . . It is my understanding that there has not been any written ...