HERNANDEZ v. GUZMAN/ESPINOZA

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 7/2/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) Plaintiff/Appellant, ) ) v. ) ) BLANCA GRIEGO GUZMAN and JOHN DOE ) GUZMAN, wife and husband; VINCENTE ) SOTO ESPINOZA and JANE DOE ESPINOZA, ) husband and wife, ) ) Defendant/Appellee. _______________________________________ ) RAYMUNDO HERNANDEZ, an individual, 1 CA-CV 12-0473 DEPARTMENT E MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2009-013583 The Honorable Colleen L. French, Commissioner REVERSED AND REMANDED Salvador Perez-SaldaÃ±a Attorney at Law By Salvador Perez-SaldaÃ±a Attorney for Plaintiff/Appellant Phoenix Parrillo, Weiss & O Halloran By Tico A. Glavas Attorneys for Defendant/Appellee Blanca Griego Guzman Tempe Farley, Seletos & Chocate Phoenix By Benjamin R. Eid Attorneys for Defendant/Appellee Vincente Soto Espinoza N O R R I S, Judge ¶1 Plaintiff/Appellant Raymundo Hernandez appeals the superior court s dismissal of his case with prejudice for his counsel s failures to appear at a scheduled pretrial conference and file a joint pretrial statement. Because, on this record, the superior court should not have dismissed Hernandez s case as a sanction, we reverse the dismissal order and remand for further proceedings consistent with this decision. FACTS AND PROCEDURAL BACKGROUND ¶2 In April 2009, Hernandez sued Defendants/Appellees Blanca Griego Guzman and Vicente Soto Espinoza for negligence arising out of a car accident. After compulsory arbitration, an arbitrator entered an award in favor of Guzman and Espinoza. Hernandez appealed the arbitration award to the superior court and requested a jury trial. ¶3 The superior court set a three-day jury trial to begin on March 12, 2012. By minute entry filed on September 2, 2011, the court required [c]ounsel who will be the trial lawyer on the case to attend the final trial management conference on February 28, 2012 ( February 2012 conference ). The court also required counsel to file a final joint pretrial statement by February 21, 2012, pursuant to Rule 16(d) of the Arizona Rules of Civil Procedure. The parties, however, did not file such a statement. 2 ¶4 of At the February 2012 conference, Hernandez s counsel record, Alicia Salvador Perez-SaldaÃ±a, Montoya-Sanchez counsel ). appeared did as not appear. Hernandez s Instead, counsel ( new Neither Perez-SaldaÃ±a nor new counsel had filed a notice of substitution or association of counsel. ¶5 Three days before the scheduled jury trial, on March 9, 2012, the superior court held a telephonic status conference with counsel regarding the trial ( March Perez-SaldaÃ±a appeared for Hernandez. Perez-SaldaÃ±a, Hernandez s this order Court s participate superior at court the regarding Final dismissed vacated the trial. 1 counsel conference ). Based on the failures of of Rule Trial 2012 record 16(d) to case with appear and Conference, the and Management Hernandez s comply with prejudice and Subsequently, the court denied Hernandez s Rule 59 motion for new trial and to set aside the dismissal. DISCUSSION ¶6 court On appeal, Hernandez essentially argues the superior abused its discretion by dismissing his case and sanctioning him for his counsel s conduct because it did not 1 Although the superior court dismissed Hernandez s case pursuant to its authority under Rule 37(b)(2)(C ) of the Arizona Rules of Civil Procedure, this case, at least in part, involves a violation of Rule 16(f), not discovery violations under Rule 37. Nevertheless, Rule 16(f) authorizes the court to impose sanctions as prescribed by Rule 37(b)(2)(C), including dismissal. 3 hold an evidentiary hearing to determine whether he or his counsel was at fault, the violations were due to willfulness or bad faith, and lesser sanctions would have been appropriate. As discussed below, we agree. ¶7 obey Under Rule 16(f), when a party or attorney fails to a scheduling or pretrial order, does not appear at a scheduling or pretrial conference, or fails to participate in good faith in a scheduling or pretrial conference or in the preparation of the joint pretrial statement, the superior court shall, except upon a showing of good cause, make such orders . . . as are just. Ariz. R. Civ. P. 16(f). The sanctions under Rule 16(f) mirror discovery sanctions under Rule 37(b); therefore, the standards and case law applicable to discovery sanctions apply to Rule 16(f) sanctions. Estate of Lewis v. Lewis, 229 Ariz. 316, 323, ¶ 18, 275 P.3d 615, 622 (App. 2012). Although we review sanctions for an abuse of discretion, when a court imposes severe sanctions, such as dismissal, striking a pleading, or entering a default judgment, its discretion is more limited (citation and than when internal it employs quotation lesser marks sanctions. omitted). Id. Drastic sanctions that run counter to disposing of a case on the merits are generally disfavored and must be based on a determination of willfulness or bad faith by the party being sanctioned. 4 Id. ¶8 Here, the superior court did not find, and the record does not reflect, Hernandez was personally at fault for his counsel s failure to appear at the February 2012 conference and to file a joint pretrial statement. See id. at 326, ¶ 29, 275 P.3d at 625 ( under Rule 37(b), the fault of an attorney is not attributed to a client and a client should not suffer default as a result of his counsel s guilty conduct ) (citation omitted); Green v. Lisa Frank, Inc., 221 Ariz. 138, 154, ¶ 45, 211 P.3d 16, 32 (App. 2009) (courts typically consider whether the violations were committed by the party or by counsel ); Nesmith v. Superior Court In & For Cnty. of Maricopa, 164 Ariz. 70, 71, 790 P.2d 768, 769 (App. 1990) ( Dismissal is warranted only when the plaintiff personally shares complicity in the and the abusive behavior. ). ¶9 Further, the superior court did not find, record does not reflect, Hernandez s counsel s nonappearance was willful or made in bad faith, or that Guzman or Espinoza had suffered any prejudice. See Green, 221 Ariz. at 154, ¶ 45, 211 P.3d at 32 (other factors for dismissal include whether the conduct was willful or in bad faith and whether the violations were repeated or continuous, and prejudice to the other party, both in terms of its ability to litigate its claims and other harms caused by the disobedient party s actions ). 5 Although Hernandez s counsel of record, Perez-SaldaÃ±a, did not appear at the February 2012 conference, new counsel appeared on behalf of Perez-SaldaÃ±a, addressed trial issues, ready to go [to trial] on March 12th. his counsel, should have filed a and stated we re While Hernandez, through notice of substitution or association of counsel, neither Guzman nor Espinoza objected to new counsel s appearance nor demonstrated any prejudice from the new representation, and the court s minute entry only required [c]ounsel who will be the trial lawyer on the case - rather than counsel of record -- to appear at the February 2012 conference. ¶10 Additionally, the superior court did not find -- and the record before it when it dismissed Hernandez s case does not reflect, one way or the other -- whether Hernandez s counsel willfully failed to participate in the preparation of the joint pretrial statement, and whether the Rule 16(d) violation prejudiced Guzman and Espinoza. ¶11 March Although 2012 on appeal, conference Guzman lasted and twelve Espinoza minutes argue and the allowed [Hernandez] time to explain the violations to the court, the superior court, in dismissing Hernandez s case, did not find, and the record before us does not reflect, Hernandez was personally at fault, his counsel had committed the violations 6 willfully or in bad faith, or the opposing parties were prejudiced by the violations. ¶12 Finally, and of critical importance here, before the superior court was entitled to impose the ultimate sanction of dismissal, at a minimum, Hernandez was entitled to an evidentiary hearing to determine whether he or his counsel was at fault faith. and whether the violations were willful or in bad Seidman v. Seidman, 222 Ariz. 408, 411-12, ¶¶ 19-20, 215 P.3d 382, 385-86 (App. 2009) (before entering default judgment, due process requires court to hold evidentiary hearing and make express findings as to (1) whether fault lies with client or counsel; (2) whether violation was committed willfully or in bad faith; and (3) whether egregiousness warrants dismissal or lesser sanction); Robinson v. Higuera, 157 Ariz. 622, 625, 760 P.2d 622, 625 (App. 1988) ( When questions arise as to a party s bad faith or willful misconduct in violating a[n] . . . order, fundamental fairness requires that the court hold an evidentiary hearing prior to entry of default judgment or dismissal ); cf. Hammoudeh v. Jada, 222 Ariz. 570, 572-73, ¶¶ 7, 12, 218 P.3d 1027, 1029-30 (App. 2009) (evidentiary hearing unnecessary when it was apparent from the responsible for violation). record client, not counsel, was The March 2012 conference, however, did not meet these requirements. 7 Therefore, on this record, the superior court should not have dismissed Hernandez s case with prejudice. CONCLUSION ¶13 For the foregoing reasons, we reverse the superior court s order dismissing Hernandez s case and remand for further proceedings, see the authorities cited in ¶ 12 supra, consistent with this decision. As the successful party on appeal, we award Hernandez his costs on appeal contingent upon his compliance with Rule 21 of the Arizona Rules of Civil Appellate Procedures. A.R.S. § 12-341 (2003). /S/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /S/ MICHAEL J. BROWN, Judge /S/ JOHN C. GEMMILL, Judge 8

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