Filed 5/4/15 Hamilton v. Yates CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

PAUL C. HAMILTON,
                                                                                           F069608
         Plaintiff and Appellant,
                                                                           (Super. Ct. No. 10CECG03520)
                   v.

JAMES A. YATES et al.,                                                                   OPINION
         Defendants and Respondents.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver
Kapetan, Judge.
         Paul C. Hamilton, in pro. per., for Plaintiff and Appellant.
         Kamala D. Harris, Attorney General, Jonathan L. Wolf, Assistant Attorney
General, Vickie P. Whitney and Tyler V. Heath, Deputy Attorneys General, for
Defendants and Respondents.
                                                        -ooOoo-

*        Before Gomes, Acting P.J., Kane, J. and Poochigian, J.
                                     INTRODUCTION
        Appellant Paul C. Hamilton is a California inmate incarcerated at San Quentin
State Prison serving a life term. In September 2010, he filed a civil lawsuit against
several named defendants regarding events that occurred while he was incarcerated at
Pleasant Valley State Prison. Appellant failed to appear in court on May 6, 2013, the first
scheduled trial date. The trial date was ultimately continued to April 21, 2014. 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, feasible way of conducting a jury trial in Fresno or at San
Quentin. The court then granted defendants’ motion to dismiss the action. Appellant
appeals. We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
        Appellant, now a 66-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. Respondents 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


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       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 786, 792–793, the court
granted defendants’ motion for dismissal under Code of Civil Procedure section 581,
subdivisions (b) and (m), and California Rules of Court, rule 3.1332(d)(5).
       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



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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 respondents’ motion to
dismiss.
                                       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

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to appear at the status conference. His nonappearance was not willful and was solely the
result of his imprisonment. 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.
          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. 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. (Id. at p. 793.) In determining the appropriate remedy, the
court exercises its sound discretion. (Id. 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.) Therefore, the court
abused its discretion in terminating the action. (Ibid.)

                                                5.
The Trial Court Did Not Abuse Its Discretion
       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 action 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 an 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.

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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.)
       The trial court considered all of the possible remedies outlined in Wantuch and
invited the parties to suggest any others. The court carefully considered the feasibility of
how a jury trial could be conducted and where, and concluded that there was no practical,
reasonable way to conduct a jury trial in this matter either in Fresno or at San Quentin.
The only other remedy would be to defer the action until the prisoner is released, but, in
light of his age, his life sentence and appellant’s own concession that was not a
reasonable option, the court rejected it.
       Code of Civil Procedure section 581, subdivision (b)(5) permits a court to dismiss
an action when a party fails to appear for trial and the other party asks for a dismissal.
Although appellant’s failure to personally appear for trial was the result of his
imprisonment, he failed to provide the court with a reasonable option for conducting the
jury trial of his action. Having considered all possible remedies and having ruled them
out for sound reasons, the court did not abuse its discretion in dismissing appellant’s case.
                                      DISPOSITION
       The judgment is affirmed.




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