NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT*
INTRODUCTION
Appellant Paul C. Hamilton is a California inmate incarcerated at San Quentin State Prison serving a life term. He filed a civil lawsuit against several named defendants regarding events that occurred while he was incarcerated at Pleasant Valley State Prison. At the April 21, 2014 trial date, appellant appeared by phone. The court considered the various options for bringing the case to trial as described in Wantuch v. Davis (1995) 32 Cal.App.4th 786 (Wantuch), but concluded that there was no practical way of conducting a trial in Fresno or at San Quentin. The court then granted defendants' motion to dismiss the case. Appellant appealed. On May 4, 2015, we affirmed, noting that the trial court carefully considered the feasibility of how a trial could be conducted and where, and concluded there was no reasonable way to conduct the trial either in Fresno or at San Quentin. We also noted that deferring the trial until appellant was released was not a reasonable option in light of his age (mid-60's), his life sentence, and appellant's own concession that such was not a reasonable option. We concluded the court did not abuse its discretion in dismissing appellant's case. (Code Civ. Proc., § 581, subd. (b)(5).)
Appellant petitioned the California Supreme Court and review was granted. After briefs were submitted, the Supreme Court issued an order as follows:
"The above entitled case is transferred to the Court of Appeal, Fifth Appellate District, for reconsideration in light of the Attorney General's concession that the trial court improvidently dismissed [appellant's] complaint because the court could have allowed him to appear for trial by telephone. (Cal. Rules of Court, rules 3.670(f)(3), 8.528(d).)"
Under compulsion of the Supreme Court order, we reverse the order of dismissal and remand the matter to the trial court to conduct a further hearing on defendants' motion to dismiss. The trial court shall specifically determine the feasibility of allowing appellant to appear for trial by telephone. If, after hearing, the court determines such is not reasonably feasible, then it may dismiss the action. If it concludes that the trial can go forward, the motion to dismiss shall be denied.1
FACTUAL AND PROCEDURAL BACKGROUND2
Appellant, now a 67-year-old inmate at San Quentin State Prison who is serving a life term, brought a civil action for alleged excessive force and violation of his rights under the Eighth Amendment of the United States Constitution and Civil Code section 52.1. Several defendants were named. Subsequently, appellant dismissed one defendant and the court granted summary judgment as to several others, leaving defendants Cabral, Maldonado and Valadez. Defendants timely requested a trial by jury.
Appellant did not appear at the May 3, 2013, trial readiness conference or at the original trial date of May 6, 2013. The trial court denied defendants' motion to dismiss under Code of Civil Procedure section 581, subdivision (b)(5), but the court did set the case for an order to show cause regarding dismissal for June 18, 2013, and, by minute order, ordered the parties to address the following and present possible solutions allowing the trial to proceed:
"The court is unable to transport the prisoner to the Court for the trial as there is no statutory basis for ordering the prisoner to be transported to court to attend proceedings in this matter. There is a lack of authority that permits the Court to pay the cost of transportation and security for the prisoner to attend the court proceeding. There is a lack of funds to pay the costs of transportation and security for the prisoner to attend the court proceeding. There is a lack of authority that would permit the Court to pay any appointed counsel. No attorney has offered to take the case pro bono. Holding the trial in prison is not logistically or economically feasible. The Court lacks the technology to conduct a video trial. The only option left for the Court is to defer the action until the prisoner is released or until another solution presents itself."
At the June 18, 2013, hearing, trial was reset for October 21, 2013, with a trial readiness conference calendared for October 18, 2013. At the trial readiness conference, appellant disqualified the assigned trial judge under Code of Civil Procedure section 170.6. The court vacated the October 21, 2013, trial date and scheduled a trial readiness conference for November 6, 2013. The court also ordered the parties to submit declarations regarding how to conduct the trial in light of appellant's incarceration. The trial readiness conference was then reset for December 5, 2013. An additional status conference was scheduled for January 7, 2014, and at that conference the court set the case for a trial readiness conference on April 18, 2014, and for jury trial on April 21, 2014. The court confirmed the case for trial at the April 18, 2014, trial readiness conference.
On April 21, 2014, the date set for trial, defense counsel appeared personally and appellant appeared by telephone. After much discussion and the court's consideration of the various remedies outlined in Wantuch, supra, 32 Cal.App.4th at pages 792-793, the trial court granted defendants' motion for dismissal under Code of Civil Procedure section 581 and California Rules of Court, rule 3.1332.
At the time of the April 21, 2014, hearing, appellant made several requests of the trial court, including that it order witnesses housed at various state penal institutions to be transported for trial, that appellant be appointed counsel to represent him, and in the alternative to having the case tried in Fresno, that it be conducted at San Quentin by videoconferencing. The court explained to appellant that it did not have authority to order the Fresno County Sheriff to transport prisoners in other counties. The court also explained that Fresno County was without funds to order that private counsel be appointed for appellant. On the issue of videoconferencing the trial, appellant represented that San Quentin had a video monitor, but defendants submitted a declaration from a San Quentin official indicating that appellant had never requested the use of San Quentin's videoconferencing equipment and the equipment actually belonged to the Board of Parole Hearings, not to the prison. Furthermore, appellant had not issued any subpoenas to his witnesses nor had he checked to see if there was video equipment available at their prisons to use.
On the issue of deferring the trial until after appellant was released from prison, the court determined and appellant agreed that was not a viable option. In April 2014, appellant was 65 years old. He was serving a life sentence and, in his own words, "I'm never getting out from the time that I have." He also stated that deferring the trial until after he was released was not an option. The court granted defendants' motion to dismiss under Code of Civil Procedure section 581.
DISCUSSION
Standard of Review
Determining what remedies, if any, are appropriate to ensure an inmate's meaningful access to the courts is committed to the sound discretion of the trial court and is reviewed on appeal under the abuse of discretion standard. (Wantuch, supra, 32 Cal.App.4th at p. 794.)
Wantuch v. Davis
The trial court dismissed this case after expressly considering the remedies and principles described in Wantuch, supra, 32 Cal.App.4th 786. In Wantuch, a prison inmate brought a legal malpractice action against his former criminal defense attorney. The trial court dismissed his case as a terminating sanction because of Wantuch's failure to appear at the status conference. (Id. at pp. 789-790.) His nonappearance was not willful and was solely the result of his imprisonment. (Id. at p. 795.) The appellate court reversed and remanded with directions that the trial court reconsider the matter in light of the prisoner's right of access to the courts. (Id. at pp. 790, 795-797.)
In light of the problems inherent in prosecuting a civil trial involving a pro se inmate, the Wantuch court proposed several possible remedies, including deferral of the action until the prisoner is released, appointment of counsel for the prisoner, transfer of the prisoner to court, utilization of depositions in lieu of personal appearances, holding trial in prison, conducting pretrial proceedings by telephone, propounding written discovery, use of closed circuit television, and implementation of other innovative, imaginative procedures. (Wantuch, supra, 32 Cal.App.4th at pp. 792-793.) A prisoner does not have the right to any particular remedy, including a right to compel a trial court to appoint counsel unless there is a bona fide threat to his or her personal or property interests and no other feasible alternative exists. (Id. at p. 793.) In determining an appropriate remedy to secure access, the trial court should consider the nature of the action, the potential effect on the prisoner's property, the necessity for the prisoner's presence, the prisoner's role in the action, the prisoner's literacy, intelligence and competence, the stage of the proceedings, the access of the prisoner to a law library, the length of the sentence, the feasibility of transferring the prisoner to court, and the cost and inconvenience to the prison and judicial systems. (Ibid.)
In determining the appropriate remedy, the court exercises its sound discretion. (Wantuch, supra, 32 Cal.App.4th at p. 794.) In exercising its discretion, the courts are responsible for monitoring civil cases for the purpose of expediting them through the system. Sanctions are appropriate for failure to comply with delay-reduction rules, but terminating sanctions should not be ordered as a first response when noncompliance is through no fault of the party. In Wantuch, the status conference could have been conducted by written correspondence or by phone. (Id. at p. 795.) The Wantuch court concluded that the trial court abused its discretion in terminating the action. (Ibid.)
Motion to Dismiss
In the instant case, appellant failed to appear at the first trial date in 2013 and then appeared by phone at the second trial date. On the latter date, appellant advised the court that he had witnesses in other state prisons that he wanted the court to bring to his trial. He requested the appointment of counsel. He suggested that videoconferencing of the trial could take place at his penal institution (San Quentin). He cited statutes purportedly giving the court authority to compel the attendance of inmates at his trial, but the authorities cited by appellant are Penal Code statutes that pertain to the transportation of inmates in criminal actions (Pen. Code, §§ 1567, 2620, 2621; Swarthout v. Superior Court (2012) 208 Cal.App.4th 701, 705 (Swarthout) [Pen. Code, §§ 2620-2621 apply to criminal actions]). In a footnote, the Swarthout court noted that if a prison inmate is a witness in a civil action, his testimony may be obtained by deposition in prison (Pen. Code, § 2623) or by two-way electronic audiovisual communication (Pen. Code, § 2624). (Swarthout, supra, at p. 705, fn. 5.) The record reflects that appellant had made no effort prior to the trial date in April 2014 to depose such witnesses or to otherwise arrange for their trial testimony.
Deferral of the trial until the prisoner is released was not an option, which appellant conceded. In April 2014, appellant was 65 years of age, and was serving a life sentence. He stated to the court, "I'm never getting out from the time that I have." He stated that waiting until after his release date to try the case was not a reasonable option.
The trial court indicated that holding a trial in San Quentin was not a feasible option. Appellant suggested the use of closed circuit television or videoconferencing, which he asserted was available at San Quentin. The declaration of D. Ebert, litigation coordinator at San Quentin, verified that the videoconferencing equipment at the prison belonged to the Board of Parole Hearings not to the prison and that inmates are not authorized to request the use of such equipment. On the matter of appointing counsel for appellant, the trial court indicated there were no funds with which to appoint counsel. Moreover, since there was no threat to his personal property interests, the court was under no duty to appoint counsel. (Wantuch, supra, 32 Cal.App.4th at p. 793.)
Defendants moved to dismiss the action under Code of Civil Procedure section 581, which authorizes a court to dismiss an action when a party fails to appear for trial and the other party asks for dismissal. Like the inmate in Wantuch, appellant's failure to personally appear for trial was the result of his imprisonment. Thus, it was incumbent upon the trial court to consider other reasonable alternatives short of terminating the action. While an inmate does not have the right to any particular remedy, courts may implement innovative, imaginative procedures. (Wantuch, supra, 32 Cal.App.4th at pp. 792-793.) In any event, the court is required to exercise its sound discretion. (Id. at p. 794.) Here, the trial court did consider the various alternative methods of conducting a trial enunciated in Wantuch and concluded that none were feasible.
The Supreme Court's Remand Order
The remand order from the California Supreme Court directs that the dismissal of the action be reconsidered in light of the Attorney General's concession that the trial court improperly dismissed the complaint because the court could have allowed appellant to appear for trial by telephone. The order cites California Rules of Court, rule 3.670(f)(3). The Attorney General's respondents' brief that was filed in our court in November 2014 stated:
"At the April 21, 2014 trial, the court specifically noted that [appellant] had been allowed to appear at pretrial proceedings by telephone. The trial court also considered [appellant's] suggestion of trial by telephone but properly rejected it. Individuals are not allowed to appear for civil trials by telephone. (Cal. Rules of Court, rule 3.670(e)(1)(A).) Personal appearances are required at trials and other proceedings where witnesses are expected to testify. (Ibid.)" (Italics added.)
In an about-face, the Attorney General's brief before the California Supreme Court reads:
"In the present case, existing precedent did not provide an obvious way for the trial court to ensure [appellant's] access to the courts. Nevertheless, respondents acknowledge that the action should not have been dismissed completely based on a failure to prosecute. Rather, the trial court could have arranged for [appellant] to conduct the trial by telephone. Although the Legislature has superseded the common law writ of habeas corpus ad testificandum through the statutory enactments governing personal appearance and testimony by prisoners, it did not foreclose an inmate from appearing remotely by telephone. (See Cal. Rules of Court, rule 3.670(f)(3) [court has discretion to allow telephonic appearance even where personal appearance is otherwise required, such as at trial].) And while the Legislature has foreclosed allowing a prisoner to testify by telephone (as opposed to simply appearing by telephone) when it provided the exclusive means of receiving prisoner testimony (i.e., Code Civ. Proc., § 1997; Pen. Code, §§ 2622, 2623, 2624), [appellant] could have testified by having his deposition transcript (with which [appellant] was `satisfied') read to the jury (see Pen. Code, §§ 2622, 2623). [Appellant] agrees." (Italics added, fn. omitted.)
Thus, the Attorney General's concession before the California Supreme Court was a reversal of the position previously argued in our court.
The California Rules of Court require a personal appearance for trial unless the court determines that a telephone appearance is "appropriate."
California Rules of Court, rule 3.670(e), (f) and (g) provides:
"(e) Required personal appearances
"(1) Except as permitted by the court under (f)(3), a personal appearance is required for the following hearings, conferences, and proceedings:
"(A) Trials, hearings, and proceedings at which witnesses are expected to testify; [¶] . . . [¶]
"(f) Court discretion to modify rule
"(1) Policy favoring telephone appearances in civil cases In exercising its discretion under this provision, the court should consider the general policy favoring telephone appearances in civil cases.
"(2) Court may require personal appearances The court may require a party to appear in person at a hearing, conference, or proceeding listed in (c) or (d) if the court determines on a hearing-by-hearing basis that a personal appearance would materially assist in the determination of the proceedings or in the effective management or resolution of the particular case.
"(3) Court may permit appearances by telephone The court may permit a party to appear by telephone at a hearing, conference, or proceeding under (e) if the court determines that a telephone appearance is appropriate.
"(g) Need for personal appearance If, at any time during a hearing, conference, or proceeding conducted by telephone, the court determines that a personal appearance is necessary, the court may continue the matter and require a personal appearance." (Italics added.)
Conclusion
We note that appellant did not have counsel on his appeal before this court, but does have appellate counsel now. If he has retained trial counsel, that could affect the trial court's consideration of how a trial might be conducted. In any event, we reverse the dismissal order and remand this matter to the trial court to conduct a further hearing on defendants' motion to dismiss. The trial court is to pay particular attention to California Rules of Court, rule 3.670, in its consideration of whether a trial can be reasonably conducted with appellant appearing for trial by telephone. If the court determines that a trial may be reasonably conducted, the motion to dismiss shall be denied. If the court determines that a trial cannot reasonably and feasibly be conducted with appellant appearing for trial by telephone or in any other feasible manner consistent with the principles enunciated in Wantuch, supra, 32 Cal.App.4th 786, the motion to dismiss shall be granted.
DISPOSITION
The order of dismissal is reversed, and the matter is remanded to the trial court to conduct a further hearing on defendants' motion to dismiss in accordance with the views expressed herein. Each party to bear their own costs on appeal.
