Andre v. General Dynamics, Inc.

• Citation: 43 Cal.App.3d 839,118 Cal.Rptr. 95
• Court: California Court of Appeals
• Decision Date: 12 December 1974
• Parties: Jane M. ANDRE, Plaintiff and Appellant, v. GENERAL DYNAMICS, INC., et al., Defendants and Respondents. Civ. 43683.

Page 95

118 Cal.Rptr. 95

43 Cal.App.3d 839

Jane M. ANDRE, Plaintiff and Appellant, v. GENERAL DYNAMICS, INC., et al., Defendants and Respondents.

Civ. 43683.

Court of Appeal, Second District, Division 1, California.

Dec. 12, 1974.

Hearing Denied Feb. 6, 1975.

George D. Bane, Beverly Hills, for plaintiff and appellant.

Hagenbaugh, Murphy & Davies and Raymond T. Gail, Los Angeles, for defendants and respondents.

LILLIE, Associate Justice.

Plaintiff appeals from judgment of dismissal of her action 'as to all parties and all causes of action' for her failure timely to prosecute.

Plaintiff filed her complaint alleging slander by all defendants, General Dynamics, Inc., Jack Sloan, Jack Mason and Joe Till, on September 2, 1969; service of process was made only on defendant General Dynamics, Inc. which filed its answer November 7, 1969.

An At-Issue Memorandum was filed by plaintiff on May 11, 1970; she filed Certificate of Readiness on January 18, 1971, and the trial was set for May 3, 1971. On motion of General Dynamics, Inc. trial was continued to July 12, 1971; on plaintiff's motion it was continued to October 4, 1971; again on plaintiff's motion trial was continued to May 1, 1972, and settlement conference set for April 10, 1972; on the next day the court reinstated the trial date of May 1, 1972, and the parties were notified; on May 1, 1972, the cause trailed to May 2, 1972, on which day the cause was taken off calender on request of plaintiff's counsel under the belief the matter was settled. Subsequently plaintiff refused to accept a settlement offer made by General Dynamics, Inc.

On October 16, 1972, plaintiff and filed motion for leave to file amended complaint which was denied November 10, 1972.

On November 28, 1972, notice of motion to dismiss for failure to bring the cause to trial within two years, pursuant to section 583, subdivision (a), Code of Civil Procedure, was served on plaintiff by the court on its own motion in opposition to which plaintiff filed declarations and points and authorities. Subsequently on January 13, 1973, General Dynamics, Inc. filed notice of motion to dismiss for failure to prosecute. On January 18, 1973, hearings on these motions were continued to February 1, 1973. Plaintiff, represented by counsel, appeared and testified. The motions were granted and judgment of dismissal as to all parties was entered on June 25, 1973.

The primary issue is whether the trial court abused its discretion by initiating a motion to dismiss plaintiff's action against all defendants. First we note that the record fails to show that defendants Sloan, Mason and Till were ever served with process; the judgment of dismissal was entered close to four years after the complaint was filed. Section 581a, subdivision (a), Code of Civil Procedure, provides that the court shall dismiss an action On its own motion as to any defendant on whom summons and complaint have not been served and return made thereon within three years after the filing of the complaint; ¹ and it is settled that such a dismissal is proper in the valid exercise of the court's discretion where, as at bench no reason has been shown by the plaintiff to justify the failure to serve process. (Tresawy Aero, Inc. v. Superior Court, 5 Cal.3d 431, 437, 96 Cal.Rptr. 571, 487 P.2d 1211; Watson v. Superior Court, 24 Cal.App.3d 53, 58, 100 Cal.Rptr. 684.) Moreover the fact that General Dynamics, Inc. was served and did appear in the action does not preclude the dismissal as to the unserved defendants who were here sued under joint and several liability. (Watson, supra, p. 57, 100 Cal.Rptr. 684; Hill v. Superior Court, 251 Cal.App.2d 746, 755, 59 Cal.Rptr. 768.) Accordingly, there is no issue as to the court's power in respect to the judgment of dismissal as to these nonserved defendants. ²

As to General Dynamics, Inc., the foregoing chronological enumeration establishes that more than three years elapsed between the filing of the complaint and the trial court's notice of motion to dismiss during which time the cause had been taken off calendar at plaintiff's request and no attempt had been made on her behalf to reinstate it and bring it to trial. Under section 583, subdivision (a), the trial court patently had discretion to dismiss ³; and 'The exercise of the trial court's discretion will be disturbed only for clear abuse (citation) . . . a reviewing court should not disturb the exercise of a trial court's discretion unless it appears that there has been a miscarriage of justice.' (Denham v. Superior Court, 2 Cal.3d 557, 564--566, 86 Cal.Rptr. 65, 69--71, 468 P.2d 193, 197--199; Hansen v. Snap-Tite, Inc., 23 Cal.App.3d 208, 213, 100 Cal.Rptr. 51.) Denham v. Superior Court, 2 Cal.3d 557, 86 Cal.Rptr. 65, 468 P.2d 193 does hold that a plaintiff may be able to demonstrate an abuse of discretion by a showing that he clearly had good cause for delay in bringing the action to trial which the trial court manifestly failed to recognize: "However, the burden is upon a plaintiff to justify his delay in bringing the case to trial . . . and it is his duty 'at every stage of the proceedings to use diligence to expedite his case to a final determination.' . . . 'Section 583 Requires a dismissal of an action if it is not brought to trial within five years after it is commenced, and Authorizes a dismissal, within the discretion of the trial court if it is not brought to trial within two years. As the time passes from two years nearer and nearer to five, the showing required to justify a failure to bring a case to trial grows greater and greater."' (Farrar v. McCormick, 25 Cal.App.3d 701, 703--704, 102 Cal.Rptr. 190; Lowe v. Thomas, 11 Cal.App.3d 867, 869--870, 90 Cal.Rptr. 202.)

Plaintiff submitted her reason for the delay to be that after the cause was taken off calendar by her attorney on May 2, 1972, he thereafter withdrew from the case (when she refused to accept the settlement offer) and she did not retain other counsel until October 4, 1972. However, plaintiff made no showing that the delay in obtaining other legal representation was beyond her control, ⁴ much less any demonstration that if it was, this would necessarily constitute such good cause as to establish an abuse of discretion by the trial court in granting the dismissal. Analogous case law appears to the contrary. In Cohn v. Rosenberg, 62 Cal.App.2d 140, 144 P.2d 399, involving a motion to dismiss under the three year portion of section 583, subdivision (c), the judgment of dismissal was affirmed despite the contention that plaintiff had had no legal representation for a time after his attorney became a judge, and that this period should not be counted in computing the overall period of delay in prosecuting. Said the court at page 146, 144 P.2d at page 402: 'Nor does the fact that after January, 1939, plaintiff's attorney could no longer act for him serve as legal ground for setting aside the trial court's affirmative finding of laches, for it will be noted plaintiff waited three years before he secured the services of another attorney.' Also, in Beswick v. Palo Verde Hospital Assn., 188 Cal.App.2d 254, 10 Cal.Rptr. 314, plaintiff contended and during part of the five year period (§ 583, subd. (b)) 'the power to bring the action to trial was entirely beyond his control' (p. 257, 10 Cal.Rptr., p. 316) because of the illness and subsequent death of one of his attorneys. The judgment of dismissal was affirmed: 'Delay attributable to the . . . sickness, or death of counsel . . . is not necessarily excusable. (Citation.)' (P. 260--261, 10 Cal.Rptr. p. 318.) Moreover, Although plaintiff obtained new counsel on October 4, 1972, they failed to reset the cause for trial during the six weeks before the trial court filed its notice of motion to dismiss. "(T) he duty rests upon a plaintiff at every stage of the proceedings to use due diligence to expedite his case to a final determination.' (Citations).' (Crown Coach Corp. v. Superior Court, 8 Cal.3d 540, 548, 105 Cal.Rptr. 339, 344, 503 P.2d 1347, 1352; Fannin Corp. v. Superior Court, 36 Cal.App.3d 745, 750, 111 Cal.Rptr. 920.) We attribute no significance to the circumstances alluded to by plaintiff that at one time the trial court on her motion continued the trial until May 2, 1972, a date already more than two years past the filing date of the complaint. Surely this tolerance at that time did not, and could not estop the subsequent motions to dismiss filed and served months later when the cause had still not been brought to trial.

On the issue of the trial court's abuse of discretion in initiating the motion to dismiss as to General Dynamics, Inc., raised by appellant, neither party has cited a case in point, nor have we found any decided under the present language of section 583, subdivision (a). However, we conclude that the trial court's action, although apparently unusual, did not constitute error and, under the circumstances at bench, certainly was not prejudicial.

In construing the code section we note that it provides for an exercise of the court's discretion in relation to rules pertaining to the 'procedure for obtaining such dismissal' adopted by the Judicial Council, and we have compared this language adopted by the Legislature in 1969 by amending section 583, with the Prior wording of the section pertaining to discretionary dismissals: 'The court may in its discretion dismiss any action for want of prosecution On motion of the defendant (italics ours) and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such action to trial, . . .' We construe the amendment as an indication by the Legislature that it no longer intended that a motion for dismissal could be initiated only by a defendant. 'Where the amendment of a statute consists of a deletion of an express provision, the presumption is that a substantial change in the law was intended.' (Subsequent Injuries Fund...