Attorney Donald A. Hon represents the plaintiffs Laborers' International Union of North America, AFL-CIO, Local 89 et al., in this lawsuit against El Dorado Landscape Company et al. Appealing an order imposing sanctions, Hon challenges the constitutionality of the San Diego County "Fast Track" rules (Fast Track rules) enacted to implement the Trial Court Delay Reduction Act of 1986 (the Act). (Gov. Code, § 68600 et seq.)
Procedurally, Hon failed to timely file the required joint at-issue memorandum under Fast Track rule 10.7(a) or a certificate as to why one was not filed in this case pursuant to Fast Track rules 10.7(b)(1)-10.7(b)(4).
A week later, the court, finding good cause shown, granted Hon's ex parte request for relief from the sanctions order and stated the joint at-issue memorandum must be filed no later than February 9, 1988. Hon, however, again failed to file the joint at-issue memorandum. The court then issued a second OSC as to why sanctions should not be imposed, ordering Hon to appear and give any legal reason why the time standards under the Fast Track rules were not met and giving notice the issue of sanctions under Code of Civil Procedure sections 177.5 and 575.2 would also be before the court.
Hon specifically contends the Fast Track rules are unconstitutional because they violate article VI, section la of the California Constitution (see post, pp. 1004-1005), because this court has already ruled the Fast Track rules do not annul or make inoperative previous statutes and case law, because the Fast Track rules violate Code of Civil Procedure section 177.5 and violate the due process clause of the 14th amendment of the United States Constitution, and because the nine counties that have adopted "Fast
Before separately addressing Hon's various arguments, we make some general comments about the California Constitution, the Act and Hon's apparent misconceptions regarding the Act and how it relates to the California Constitution.
At the outset, we note that Hon fails to recognize these well-established principles and the fact that it is the Legislature and not the Judicial Council
The Act mandates that nine exemplary delay reduction programs be established (§ 68605) and continued for a period of three years. (§ 68608.) The judges in each program are given the responsibility to "eliminate delay in the progress and ultimate resolution of litigation, to assume and maintain control over the pace of litigation, to actively manage the processing of litigation from commencement to disposition, and to compel attorneys and litigants to prepare and resolve all litigation without delay, from the filing of the first document invoking court jurisdiction to final disposition of the action." (§ 68608.) To carry out these duties, the Act charges the judges of each program to establish procedures consistent with the policies of the Act. (§ 68608(a)-(g).)
The Act additionally mandates the Judicial Council to collect and maintain statistics during the three-year experimental period and requires the council to report to the Legislature on the results of the delay reduction program at the end of that time and recommend whether the program, and which procedures, should be adopted in trial courts statewide. (§ 68611.) The Judicial Council is also charged with reviewing all local delay reduction rules adopted or revised by the various program courts and is given discretion to develop or adopt procedures, standards or policies of the trial courts on a statewide basis. (§ 68612.) The Judicial Council further may, "to the extent desirable," make suggestions to the program courts of revisions of their rules consistent with other court rules. (§ 68619(a).)
Moreover, the Act also permits voluntary participation in the program by counties under the Trial Court Funding Act of 1985 (§ 68618) and other specified counties. (§ 68618.5.) The Judicial Council is required to adopt uniform rules for those counties adopting a voluntary program under section 68618. (§ 68619(b).)
As discussed in International Union of Operating Engineers v. Superior Court (1989) 207 Cal.App.3d 340 [254 Cal.Rptr. 782] (International), which determined that the Los Angeles trial court delay reduction rules prevailed over the provisions of Code of Civil Procedure section 170.6(2) as to the time during which a challenge against a judge may be asserted in a project case: "[B]road authority was necessarily given to the project trial courts by the Act to fashion rules appropriate to carrying out the Act's basic and fundamental purposes [as declared in section 68601(a)]. The authority given to the Judicial Council to adopt standards for the timely disposition of cases ... and the direction given to the project trial courts to adopt, utilize and enforce procedures, standards and policies which would be used in the project ... necessarily recognized that some conflict might arise with procedures and time limits contained in either the rules of court or in statutes.
"Initially, Government Code section 68612 expressly authorized deviation only from the rules of court, but said nothing about the consequences of any conflict with a statute. However, the urgent nature of the problem which the Act sought to address, and the broad scope of the authority given to the Judicial Council and the project trial courts by the Act, when read in
"In an amendment to Government Code section 68612, ... effective September 22, 1988 ..., the Legislature provided that the procedures, standards and policies adopted by the project trial courts could not only be inconsistent with the rules of court but such courts were also permitted to `impose procedural requirements in addition to those authorized by statute' and to `shorten any time specified by statute for performing an act.' The Legislature regarded this not as a change in the law but merely declaratory of existing law under the Act.[
Further, section 68609(d) of that Act when first drafted specifically stated "[i]n 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" and encouraged judges to utilize sanctions to achieve the purposes of the Act. (See § 68609(d) before 1988 amendment, Stats. 1986, ch. 1335, § 1; after the September 1988 amendment, section 68609(d) reads, in part: "Judges are encouraged to impose sanctions to achieve the purposes of this article.")
As we recently discussed in Moyal v. Lanphear, supra, 208 Cal.App.3d 491 at page 500, fast track local rules (e.g., Fast Track rule 10.7(b)(5)), along with Code of Civil Procedure sections 575.1, 575.2, 177.5, California Rules of Court, rule 227,
Turning first to Hon's general arguments, we note he makes no contention that the Fast Track rules were not properly adopted or that all required statutory procedures as set out in the Act were not satisfied. He merely contends all the Fast Track rules are unconstitutional and conflict with other statutes or court rules.
Hon, however, has premised his constitutional theories on a section of the California Constitution which was repealed in 1966. Article VI, section 1a, including subsection (5) of that section, which formerly set out the powers of the Judicial Council, was repealed November 8, 1966. That subsection empowered the Judicial Council to "[a]dopt or amend rules of practice and
Relying on our opinion in Prudential-Bache Securities, Inc. v. Superior Court (1988) 201 Cal.App.3d 924 [247 Cal.Rptr. 477], and this outdated constitutional section concerning the authority of the Judicial Council to make local rules of court, Hon argues the Fast Track rules cannot be allowed to supersede preexisting and governing rules of the Judicial Council and statutes. Prudential-Bache and reference to the constitutional powers of the Judicial Council, however, are inapposite here.
In Prudential-Bache, the perfecting of an appeal after the denial of a motion to compel arbitration was held to stay any proceedings in the case before the superior court regardless of its designation as a "fast track" case. (Prudential-Bache Securities, Inc. v. Superior Court, supra, 201 Cal. App.3d at p. 925.) Subsequent amendment to the Fast Track rules has clarified the jurisdictional effect of the taking of an appeal. (See Fast Track rule 10.6, effective January 1, 1989.) Here, no problem exists, as in Prudential-Bache, concerning the jurisdiction of the trial court to do further acts which the perfecting of the appeal in Prudential-Bache created. Prudential-Bache simply involved statutes and case law unrelated to the standards then adopted for the timely disposition of cases set forth in the Fast Track rules.
Moreover, as already discussed, the constitutional power of the Judicial Council to make rules of court is limited by the wording of the constitutional article and section granting it that power and by the Legislature's supreme right to make the laws in California. Article VI, section 6 of the California Constitution now provides in part that the Judicial Council, "[t]o improve the administration of justice [,] shall survey judicial business and make recommendations to the courts, make recommendations annually to the Governor and Legislature, adopt rules for court administration, practice and procedure, not inconsistent with statute, and perform other functions prescribed by statute." (Italics added.) Thus one must look at the statutes enacted by the Legislature to determine the controlling authority of rules of court adopted by the council.
Hon argues the Judicial Council cannot make rules contrary to controlling constitutional and statutory enactments. With this we do not quarrel, except to add that the Legislature can by its own enactment give the Judicial Council the authority to do so and has done just that in the Act. As mentioned earlier, the Act itself requires the Judicial Council to monitor the
Therefore, his contentions that the Fast Track rules are invalid because they conflict with Code of Civil Procedure sections 581(a) and 583(b) and California Rules of Court, rule 206(a) are specious.
Not only is Hon again relying on code sections which have been repealed, he is not a party aggrieved by application of Fast Track rule 10.4(a) because he has already filed the return of service in this case. In addition, the subject matter of the current versions of the discretionary and mandatory dismissal statutes generally concerns final limitation periods before the court may impose the ultimate sanction of dismissal and does not concern the shortened time limits for service to help reduce trial delay under the Fast Track rules. Furthermore, any seeming inconsistency between the three years to return summons provision under Code of Civil Procedure section 583.210 and Fast Track rule 10.4(a) has been clarified by the recent amendment to section 68612 which provides the Fast Track rules may shorten any time limits set out to do an act other than those specifically stated in that section.
Even if Hon were relying on the current version of rule 206(a), rule 209, his contention would fail. Under the Act, the Legislature in its wisdom delegated to the Judicial Council and the trial courts the power to enact rules to set time limits for pretrial procedures for the purpose of reducing trial delay. (§§ 68608, 68612, 68619.) Whereas Fast Track rule 10.7(a) sets a time limit for the filing of an at-issue memorandum, while rule 209 does not specify such a time limit, this difference does not invalidate either rule; rather, the Fast Track rule and rule 209 coexist for application to appropriate cases. For example, an eminent domain case not assigned to proceed under the Fast Track rules still utilizes rule 209 for the filing of its at-issue memorandum; that rule is simply no longer used for those cases under the delay reduction program.
That the nine mandated courts involved in the exemplary delay reduction program have differing rules of procedure for each particular "fast track" project is also fully authorized by the Act. (§§ 68612, 68619(a).) Each court is mandated to establish and publish its own rules of procedure, standards and policies and the Judicial Council has the discretion to adopt some of those rules statewide. (Ibid.) Hon's reading of existing rules and statutes to
Hon's specific assertions against the propriety of sanctions in this case are similarly meritless. Gleaned from his arguments are assertions that Fast Track rule 10.7(b)(5) affords insufficient due process under the due process clause of the United States Constitution for the imposition of monetary sanctions upon failure to file a joint at-issue memorandum; that it impermissibly fails to require a statement of reasons for imposing such sanctions as mandated by Code of Civil Procedure section 177.5; that it is not rationally related to an overriding state objective; and that its application is inappropriate in his case because he is not ready to go to trial.
The trial court here imposed $150 in sanctions against Hon for failure to comply with its Fast Track rule by untimely filing a joint at-issue memorandum. Sanctions were imposed only after an OSC was issued and a hearing conducted to determine whether they were warranted. This was the second time an OSC had issued and a hearing had been conducted on the same rule violation. The first sanction imposed had been removed after an ex parte hearing in which Hon explained to the court's satisfaction good reason why the memorandum had not yet been filed. Upon his representation to the court that the parties were ready to proceed, a new date was set for filing the joint at-issue memorandum.
As already discussed, the clear purpose of Fast Track rule 10.7(b)(5) is to require a party or counsel to comply with the procedure adopted in Fast Track rule 10.7(a), the filing of a joint at-issue memorandum, in furtherance of the objectives of the Act to reduce trial delay. The Fast Track rule itself provided Hon with notice that if he failed to comply with it he might be subject to sanctions. (See Moyal v. Lanphear, supra, 208 Cal.App.3d 491.)
The order imposing sanctions is affirmed.
Todd, Acting P.J., and Froehlich, J., concurred.
A petition for a rehearing was denied April 10, 1989, and appellant's petition for review by the Supreme Court was denied May 23, 1989.
All references to the Fast Track rules will be to the rules as they existed before the January 1, 1989, amendments unless otherwise stated.
Section 575.2 of the Code of Civil Procedure provides for penalties "if any counsel, a party represented by counsel, or a party if in pro se, fails to comply with any of the requirements" of local rules made by the local court under Code of Civil Procedure section 575.1.
Newly enacted Code of Civil Procedure section 904.4, effective January 1, 1989, concerning the nonappealability of an order for monetary sanctions for less than $500 in San Diego County cases, is inapplicable here; that section only applies to sanctions awarded under Code of Civil Procedure sections 128.5 and 2023.
"`The primary goal of [Assem. Bill No. 3830] is to clarify the intent of [the Act]. Some local rules adopted in furtherance of this program have been challenged as contrary to statutory prescription.... [¶] The author of [Assem. Bill No. 3830] would argue that local discretion in adopting rules to shorten time and adjust procedure is absolutely essential to the success of the program. It should be noted that local judges are not without constraint in this regard, even though the point of the program is judicial case management. Rules may be adopted only in consultation with the local Bar, and the Judicial Council serves as a monitor of performance. [¶] Clarifying the propriety of local rules adopted to reduce delay is consistent with the original legislative intent that innovative approaches be pursued by the local judiciary to act expeditiously.' (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3830 (1987-1988 Reg. Sess.) as amended May 18, 1988.)
"`[Assem. Bill No. 3830] will have the effect of ratifying these local rules [adopted pursuant to the Act] and reaffirming the Legislature's original intent, namely, that cases shall be litigated expeditiously. [¶] The author [of Assem. Bill No. 3830] argues that the value of [the Act] will be greatly reduced if the participating courts do not have the authority to shorten time and require additional procedures.' (Assem. Office of Research, 3d reading analysis of Assem. Bill No. 3830 (1987-1988 Reg. Sess.).)"
Rule 206(a) previously set forth the general rules governing the at-issue memorandum. Since 1985 these general rules have been embodied in rule 209. Rule 206 now defines the general duties of all judges.