Briley v. Sukoff

• Decision Date: 02 November 1979
• Citation: 159 Cal.Rptr. 452,98 Cal.App.3d 405
• Court: California Court of Appeals Court of Appeals
• Parties: Philip W. BRILEY, Plaintiff and Appellant, v. Michael H. SUKOFF et al., Defendants and Respondents. Civ. 20601.

Page 452

159 Cal.Rptr. 452

98 Cal.App.3d 405

Philip W. BRILEY, Plaintiff and Appellant, v. Michael H. SUKOFF et al., Defendants and Respondents.

Civ. 20601.

Court of Appeal, Fourth District, Division 2, California.

Nov. 2, 1979.

Robert L. Humphreys, Costa Mesa, and Philip W. Briley, in pro per., for plaintiff and appellant

Ruston & Nance, Nancy E. Zeltzer and Donald A. Ruston, Tustin, for defendants and respondents.

OPINION

BY THE COURT.

Briley, plaintiff below, appeals from dismissal of his action for want of prosecution within five years of filing the action pursuant to the mandatory dismissal provisions of Code of Civil Procedure section 583(b). The statute requires an "action . . . shall be dismissed by the court . . . unless . . . brought to trial within five years after the plaintiff has filed his action . . . ."

On appeal, Briley contends the dismissal was erroneous because there was a trial on the merits prior to expiration of the five year period. He says this case should be controlled by Code of Civil Procedure section 583(c) which, in effect, provides a three year extension of the mandatory dismissal provision where a new trial is granted after judgment.

In this case Briley appeared at the time set for trial and defendants did not appear. The cause was assigned and after waiting a reasonable time, Briley put on testimonial and documentary evidence and received judgment. Later, this judgment was set aside. Where a party does not appear for a properly noticed trial, a judgment or dismissal may be taken by the present party, unless, for good cause, the court directs otherwise. (Code Civ.Proc., § 594.) Subsequent to the judgment being set aside, the case was dismissed pursuant to Code of Civil Procedure section 583(b) for failure to bring it to trial within five years.

On the scheduled trial date approximately ten days remained in the five year period to bring the matter to trial. According to defendants, the five year period was tolled during the time the judgment was in effect but when it was set aside the five year period commenced to run again for the balance of the period. In other words, defendant's position is that when the judgment was set aside this left Briley with approximately ten days to bring the matter to trial in order to avoid the dismissal statute.

Defendants' position is derived from cases involving standard default proceedings resulting from a failure to answer the complaint. (See Code Civ.Proc., § 585.) Foremost is the case of Langan v. McCorkle, 276 Cal.App.2d 805, 81 Cal.Rptr. 535 (disapproved on another matter in Brunzell Constr. Co. v. Wagner, 2 Cal.3d 545, fn. 13 at p. 555, 86 Cal.Rptr. 297, 468 P.2d 553.) There the court was called upon to determine the legal effect on the five year mandatory dismissal period where default judgment was taken only to be later set aside. One argument posed in that case was that the hearing on the default judgment amounted to a trial within the meaning of Code of Civil Procedure section 583. The court said, "It is well established that the effect of the entry of a default judgment which is later vacated on the running of the five-year period of section 583 is to suspend the running of the period while the default judgment remains in effect . . . (b)ut once the default judgment has been vacated the running of the five-year period resumes." (276 Cal.App.2d at pp. 807-808, 81 Cal.Rptr. at p. 538.) It was also concluded that the hearing on the entry of the default judgment is not a trial within the meaning of Code of Civil Procedure section 583. "A trial is generally considered an adversary proceeding for the determination of a contested issue arising out of pleadings in which a fact or conclusion of law is maintained by one party and controverted by the other . . . In a hearing on the entry of a default judgment resulting from the failure of a party to answer, neither adversary parties, nor adversary pleadings, nor contested issues of law or fact are present." (At p. 808, 81 Cal.Rptr. at p. 538. ¹ )

We have found the same rule as Langan applied in other cases where a default judgment was taken due to the failure to file responsive pleadings followed by the setting aside of the default judgment. (Maguire v. Collier, 49 Cal.App.3d 309, 312-313, 122 Cal.Rptr. 510; Vanyek v. Heard, 18 Cal.App.3d 467, 95 Cal.Rptr. 750; Reeves v. Hutson, 144 Cal.App.2d 445, 453, 301 P.2d 264.) None of these cases involve a judgment taken pursuant to Code of Civil Procedure section 594 and later set aside.

The case containing language which comes closest to the matter before us is the 1932 case of Holt v. Miller, 214 Cal. 558, 6 P.2d 937, in which a two year nonprosecution discretionary dismissal statute was involved. There the case was set for trial and plaintiff appeared ready for trial. Defendants did not appear at the scheduled trial time and after waiting a reasonable time for arrival of defendants and there being no arrival, the trial court heard the case and entered judgment in favor of plaintiffs. Subsequently the judgment was set aside on defendants' showing of mistake, inadvertence and excusable neglect in failing to appear for trial. The judgment was set aside approximately nine months before the two years ran from the date of commencement of the suit. During those nine months the matter was not brought to trial and upon expiration of the two year period the trial court granted defendants' motion for dismissal for lack of prosecution. The Supreme Court affirmed.

In Holt the plaintiff contended that dismissal was improper because he had set the case for trial and had appeared at the appointed time ready to proceed to trial. The Supreme Court observed that two cases under the five year mandatory dismissal provisions of Code of Civil Procedure section 583 held that appearing ready at the time set for trial was not enough to avoid mandatory dismissal. Then, without further explanation, the Holt court said: "But under these authorities (the five year Code Civ.Proc. § 583 cases) the plaintiff did not prosecute the case to trial within the two-year period." (At p. 561, 6 P.2d at p. 938.) The court made no reference to the fact a nonappearance judgment had been taken by plaintiff and consequently omitted any expressed consideration of the legal effect of such an event on a dismissal statute such as the one before us. Perhaps this was because no one raised the point in Holt. Since 1872, Code of Civil Procedure section 594 has allowed a judgment to be taken when the adverse party fails to appear for trial. The omission of any consideration of whether the nonappearance trial and judgment constituted a trial for the purposes of nonprosecution dismissal statutes is a critical void in the decision which leaves us legally uncompelled to follow Holt. It is a very fundamental proposition that cases are not authority for matters they did not decide.

The Holt decision relies on Miller & Lux Inc. v. Superior Court, 192 Cal. 333, 219 P 1006 and Ravn v. Planz, 37 Cal.App. 735, 174 P. 690, neither of which involved nonappearances, judgments taken pursuant to Code of Civil Procedure section 594 or the effect of setting aside such judgments.

No case has been cited to us, and we have found none, which considered whether the taking of testimony and a resultant judgment pursuant to Code of Civil Procedure section 594 constitutes bringing a matter to trial within the meaning of Code of Civil Procedure section 583(b). We are persuaded that such a proceeding qualifies as bringing a matter to trial in that not only does the situation include a contested proceeding in which a party simply fails to appear, but it includes the swearing of witnesses and the taking of evidence on the...