Anderson v. City of San Diego

• Decision Date: 26 June 1953
• Citation: 258 P.2d 842,118 Cal.App.2d 726
• Court: California Court of Appeals Court of Appeals
• Parties: ANDERSON v. CITY OF SAN DIEGO et al. Civ. 4516.

Page 842

258 P.2d 842

118 Cal.App.2d 726

ANDERSON v. CITY OF SAN DIEGO et al.

Civ. 4516.

District Court of Appeal, Fourth District, California.

June 26, 1953.

Manasse & Crowley, Hollywood, Betty Aronow, Los Angeles, for appellant.

J. F. DuPaul, City Atty., and Alan M. Firestone, Deputy City Attorney, San Diego, for respondents.

BARNARD, Presiding Justice.

This is an appeal from a judgment dismissing the action by reason of its not having been brought to trial within five years.

The action was one to terminate a trust, and to quiet the plaintiff's title to five lots in San Diego. It was alleged that by a deed recorded in 1893 the deceased conveyed two of these lots in trust to the defendant city on the condition that it should forever hold and use said property, and the income thereof, for the purpose of founding and maintaining a home for foundling children; that by a deed recorded in 1894 the deceased conveyed the other three lots in trust to the defendant city to be used for a foundling home, or rentedand the income used for that purpose, with a provision that the property should revert to his heirs if the city should at any time use the property or the proceeds thereof for any other purpose; and that the city had violated the conditions in these deeds by failing to use the property or its income for the support and maintenance of of foundlings' home, and by using the property for other purposes.

The complaint in this action was filed on May 9, 1946. An answer was filed on October 11, 1946, the time to answer having been extended by two stipulations and an order. On October 18, 1946, the city gave notice of a motion for permission to withdraw its answer and to file a demurrer. On November 20, 1946, such permission was granted, the answer was withdrawn and a demurrer was filed. At the request of the plaintiff, filed October 22, 1947, the demurrer was set for hearing on November 3, 1947, and on that date it was sustained, the plaintiff being given 20 days in which to amend. An amended complaint was filed on December 31, 1947, joining the Attorney General as a defendant, and alleging among other things that Joseph Cook, Sr., died in 1907, that the plaintiff was appointed administratrix of his estate in September, 1945, and that there had been no prior probate proceedings in connection with Cook's estate. The city filed a demurrer to the amended complaint on January 9, 1948. On March 7, 1949, the attorney general filed an answer, together with a cross-complaint against the city of San Diego. On March 8, 1949, plaintiff's attorney telephoned to the city attorney asking that the matter be set for trial. On March 30, 1949, he wrote to the city attorney asking about the status of the litigation. On July 1, 1949, he again wrote the city attorney asking what progress had been made on setting the demurrer for a hearing, and asking that the matter be expedited. On July 18, 1949, he received a letter from the city attorney's office saying they would file an amended demurrer in the next several weeks. In May, 1950, plaintiff's attorney called at the office of the city attorney in San Diego and was told that they would file the amended demurrer. On October 29, 1951, the attorney for plaintiff wrote to the city attorney stating that the administratrix had died and asking for a stipulation for substitution of parties plaintiff. On October 31, 1951, he was advised that the city attorney's office would not stipulate to such a substitution but that it would not be opposed. On November 19, 1951, notice was filed that on December 17, 1951, the plaintiff would move the court to hear and try the city's demurrer. This motion was filed by different attorneys for the plaintiff, and we find no substitution of attorneys or of the party plaintiff in the record. On November 28, 1951, notice was filed of the defendant city's motion to dismiss the action on the ground that it had not been brought to trial within five years, this motion being also noticed for December 17, 1951. The motion to dismiss was argued on that day, and an order and judgment of dismissal was entered on February 4, 1952.

It is well settled that the five-year provision of Code Civ.Proc. Section 583 is mandatory when it is applicable, Andersen v. Superior Court, 187 Cal. 95, 200 P. 963. It seems to be equally well settled that an implied exception exists when the plaintiff is prevented by causes beyond his control from bringing the case to trial, and that in computing the five-year period the time during which he was thus prevented is to be excluded, whether the handicap results from a lack of jurisdiction in the strict sense or 'because proceeding to trial would be both impracticable and futile.' Christin v. Superior Court, 9 Cal.2d 526, 71 P.2d 205, 208, 112 A.L.R. 1153; Pacific Greyhound Lines v. Superior Court, 28 Cal.2d 61, 168 P.2d 665; Rose v. Knapp, 38 Cal.2d 114, 237 P.2d 981. In the Christin case, the inability arose from the fact that an appeal was pending from an order changing the venue and the records had been sent to the appellate court. In the Rose case, a judgment had existed for more than two years, which destroyed the basis for the plaintiff's action and made it futile to proceed until that judgment was reversed or set aside. In the Pacific Greyhound case, one of the defendants was in the military service and had been for some years. It had been orally stipulated that the case remain off calendar until he returned to civilian status, and the record disclosed that both parties considered his presence necessary. In that case, it was held that the question of whether it was impracticable and futile to bring the action to trial within the period was one of fact for the trial court, and its refusal to dismiss the action was sustained.

The appellant's first contention is that the instant case falls within the exception established by the cases just cited, and that it was impossible, impracticable and futile to bring this case to trial. It is argued that the plaintiff could have done nothing from May, 1946, when the original complaint was filed, to November, 1947, when the first demurrer was sustained; that this period of 19 months must be excluded in the computation of the five-year period; that the appellant could not have set the case for trial since no answer to the amended complaint was ever filed by the city; and that the city's attorney made many promises to file an amended demurrer and to expedite the matter, which were not kept. The matters thus relied on are not sufficient to bring this case within any of the established exceptions, and the record sustains the trial court's finding to that effect. Pacific States Corporation v. Grant, 87 Cal.App. 108, 261 P. 1100; Rosenfelt v....