Hartman v. Santamarina

• Decision Date: 11 February 1982
• Citation: 639 P.2d 979,30 Cal.3d 762,180 Cal.Rptr. 337
• Court: California Supreme Court
• Parties: , 639 P.2d 979, 32 A.L.R.4th 833 Maxine C. HARTMAN, Plaintiff and Appellant, v. Fernando SANTAMARINA, Defendant and Respondent. L.A. 31435.

Page 337

180 Cal.Rptr. 337

30 Cal.3d 762, 639 P.2d 979, 32 A.L.R.4th 833

Maxine C. HARTMAN, Plaintiff and Appellant, v. Fernando SANTAMARINA, Defendant and Respondent.

L.A. 31435.

Supreme Court of California.

Feb. 11, 1982.

Allan F. Grossman, Encino, Lawrence A. Chusid and Peterson & Moen, Long Beach, for defendant and respondent.

Leonard Sacks, Northridge, Harvey R. Levine, Robert E. Cartwright, San Diego, Edward I. Pollock, Los Angeles, William M. Shernoff, Stephen I. Zetterberg, Claremont, Richard D. Bridgman, Oakland, Sanford Gage, Beverly Hills, Arne Werchick, San Francisco, Victoria De Goff, Berkeley, Ian Herzog, Los Angeles, Glen T. Bashore, North Fork, Wylie Aitken, Santa Ana and Ralph Drayton, Sacramento, as amici curiae on behalf of defendant and respondent.

Haight, Dickson, Brown & Bonesteel, Ronald C. Kline, Roy G. Weatherup, Los Angeles and Eric P. Lampel, Cypress, for plaintiff and appellant.

KAUS, Justice.

Plaintiff appeals from a judgment of dismissal pursuant to section 583, subdivision (b), of the Code of Civil Procedure ¹--the so-called "five-year statute." We reverse principally because the action was brought to trial within five years after it was filed. We also hold, however, that even if the case had not been brought to trial, the five years had not run when it was dismissed.

I

The complaint for medical malpractice was filed on February 7, 1974. Defendant promptly answered and an at-issue memorandum was filed on May 14, 1974. The first assigned trial date was October 20, 1975. Trial was continued, however, to February 28, 1977, plaintiff having been unable to complete the deposition of defendant. This second trial date had to be vacated because no judge was available and the court had a policy of not trailing cases from day to day. The trial was continued to October 11, 1977, when it was again continued on defendant's motion based on counsel's engagement in another case. On February 14, 1978, the continued date, the case was actually assigned for trial, but defendant challenged one judge under section 170.6 and plaintiff then challenged his replacement. No other judge was available. The court's no-trail policy was still in effect and the case was continued for 11 months to January 15, 1979--23 days from the 5th anniversary of the date of filing.

On January 15, 1979, plaintiff's counsel was engaged in another trial in Ventura County which had started on November 15, 1978, and which was taking "considerably longer" than had been estimated. He had, however, been given the day off and, suggested that, in order to avoid the impact of the five-year statute, the parties proceed to "pick a jury [and] then continue the matter to a time convenient to the court and the parties when [the] Ventura case would be finished." After some discussion, the court agreed. Twelve prospective jurors were put into the box, both sides passed for cause, the jury was sworn, and plaintiff moved for a continuance which was granted over defendant's objections. The court then discharged the jury on its own initiative. ² The trial was continued to August 6, 1979.

On July 13, 1979, defendant filed a motion to dismiss under section 583, subdivision (b), which was eventually granted on July 30, 1979. This appeal followed the entry of a formal judgment of dismissal.

II

The plain import of Miller & Lux, Inc. v. Superior Court (1923) 192 Cal. 333, 342, 219 P. 1006, is that this case was brought to trial on January 15, 1979. In Miller & Lux we held that under the circumstances of that case a continuance ordered on March 24, 1920, "had the effect of putting the case beyond the bar of [section 583]" and, therefore, mandating dismissal. (Id., at p. 342, 219 P. 1006.) We indicated, however, what procedure would have saved the day: "It may be suggested that if counsel had desired to avoid the bar of the statute, it would have been a very simple matter, after calling the court's attention to the situation, to have requested that one witness be sworn in the cases and then the hearing of the cases continued until a time which would be convenient for the court and the parties to the action." (Id.) Miller & Lux happened to be a nonjury case. If the action is set for jury trial the functional equivalent of swearing a witness is the impanelling of the jury. (Kadota v. City & County of S.F. (1958) 166 Cal.App.2d 194, 333 P.2d 75.) ³

Defendant claims that the quoted passage from Miller & Lux is dictum--as it most assuredly is. (See Adams v. Superior Court (1959) 52 Cal.2d 867, 870, 345 P.2d 666.) The dictum has, however, survived almost a half century and has been accepted by the bench and bar. (See, e.g., Clements v. Ragghianti (1957) 155 Cal.App.2d 188, 191, 317 [639 P.2d 981] P.2d 706; Vecki v. Sorenson (1959) 171 Cal.App.2d 390, 395, 340 P.2d 1020; cf. Bella Vista Development Co. v. Superior Court (1963) 223 Cal.App.2d 603, 608, 36 Cal.Rptr. 106.) At this very moment there must be dozens of cases in which all that stands between a viable lawsuit and a mandatory dismissal is faithful compliance with this court's suggestion that the impact of the five-year statute may be avoided by going through certain rites denoting the commencement of a trial. We would be subject to legitimate criticism if we defeated reasonable reliance on Miller & Lux by a belated repudiation of the procedure we suggested on the ground that our suggestion was, after all, just dictum.

Moreover, in 1923, the procedure suggested in Miller & Lux was perhaps a mere professional courtesy to comatose counsel. Apparently the calendars of most courts were reasonably current and only the most extreme Fabian tactics were likely to get plaintiff's counsel in trouble with the five-year rule. Today's overcrowded dockets, which often make it touch and go whether even the most aggressive plaintiff can get to trial within five years, demand safety valves against unjust dismissals. One, of course, is the rule that if the plaintiff has obtained a trial date within the five years and is prevented from actually going to trial because no courtroom is open, the delay is "on the house." (Goers v. Superior Court (1976) 57 Cal.App.3d 72, 75, 129 Cal.Rptr. 29.) Unfortunately, as this case shows, the facts do not always fit the Goers mold, and the pro forma commencement of the trial, as suggested by Miller & Lux, thus plays a vital part in preserving the right to a trial on the merits.

Defendant claims, however, that this court repudiated Miller & Lux in Adams v. Superior Court, supra. We disagree. True, in Adams a witness was sworn and testified, but the sole purpose of putting him on was to obtain evidence relevant to a motion for continuance, which was granted. Adams did no violence to Miller & Lux in holding that testimony elicited for the sole purpose of not going to trial did not amount to bringing the case to trial.

Finally, defendant suggests that the procedure of impanelling a jury just to send it home five minutes later, is a "charade" which does little credit to the public image of the courts. To this there are two answers, one short, one a bit longer. The short one is that the defendant need not insist that the charade be played out: he can, saving all his objections, stipulate that the necessary ceremonial has been observed. The long answer is that from time immemorial charades and fictions have played a vital role in helping courts over, around and under legal roadblocks which they were not quite ready to assault headon. ⁴

Two examples will suffice. First, every student of legal history is familiar with the symphony of fictions by which the action of ejectment was transformed from a remedy available only to dispossessed tenants into an action by which title to the freehold could be adjudicated. ⁵ Less well known but more to the point are the machinations by which the King's Bench--essentially a criminal court--usurped some of the civil jurisdiction of the Common Pleas by jailing the defendant--actually at first, fictitiously after a time, never with even a pretense of justification. ⁶ The obvious parallel between a "pretend" jailing to acquire jurisdiction and the "pretend" picking of a jury to keep it effective, suggests that on January 15, 1979, the jurors participated not in a charade but, rather, in a tableau in a centuries old pageant.

We therefore hold that on January 15, 1979, plaintiff brought this case to trial within the meaning of section 583, subdivision (b).

III

A second and entirely independent reason why the dismissal was erroneous is the fact that legally five years had not elapsed since the filing of the complaint.

In Nail v. Osterholm (1970) 13 Cal.App.3d 682, 91 Cal.Rptr. 908, the case came on for trial about four years after the complaint was filed. Plaintiff challenged the trial judge pursuant to section 170.6. The challenge was allowed, but no other judge was available. The case went off calendar. It was eventually set for retrial on February 10, 1969, several months after the fifth anniversary of the date of filing--October 6, 1968. On October 15, 1968, plaintiff unsuccessfully moved to advance the trial date. On December 6, 1968, defendant's motion to dismiss under the five-year statute was granted. The Court of Appeal reversed. It pointed out that section 170.6 contains various provisions designed to minimize any delay caused by a successful challenge under that section. ⁷ These were, however, not followed, with the result that the plaintiff was penalized for exercising his statutory right to challenge the trial judge. The Nail court then harmonized the objectives of sections 170.6 and 583 by holding that "the period that the trial is held in abeyance pending the assignment of another judge is to be disregarded in considering a subsequent motion to dismiss." (13 Cal.App.3d at p. 686, emphasis added.)

Defendant attempts to...