Applegate Drayage Co. v. Municipal Court

• Decision Date: 22 February 1972
• Citation: 23 Cal.App.3d 628,100 Cal.Rptr. 400
• Court: California Court of Appeals Court of Appeals
• Parties: APPLEGATE DRAYAGE COMPANY, a corporation, Petitioner and Respondent, v. The MUNICIPAL COURT FOR the SACRAMENTO MUNICIPAL COURT DISTRICT OF SACRAMENTO COUNTY, Respondent Below; Charles DANLEY et al., Real Parties in Interest and Appellants. Civ. 12789.

Page 400

100 Cal.Rptr. 400

23 Cal.App.3d 628

APPLEGATE DRAYAGE COMPANY, a corporation, Petitioner and Respondent, v. The MUNICIPAL COURT FOR the SACRAMENTO MUNICIPAL COURT DISTRICT OF SACRAMENTO COUNTY, Respondent Below;

Charles DANLEY et al., Real Parties in Interest and Appellants.

Civ. 12789.

Court of Appeal, Third District, California.

Feb. 22, 1972.

As Modified on Denial of Rehearing March 16, 1972.

Downey, Brand, Seymour & Rohwer, by Joseph Genshlea, Sacramento, for petitioner-respondent.

LeProhn & LeProhn, by Michael Willey, San Francisco, for real parties in interest-appellants.

JANES, Associate Justice.

Three municipal court actions--one for each plaintiff--were filed by Charles Danley, Warren Mendonca, and A. T. Ashton (hereinafter, 'plaintiffs') against Applegate Drayage Company (hereinafter, 'defendant') on November 17, 1965. ¹ On January 5, 1970, the municipal court denied defendant's motions to dismiss the actions for plaintiffs' failure to bring them to trial within two years after their commencement (Code Civ.Proc., § 583, subd. (a)).

Defendant thereafter petitioned the superior court for a writ of mandate to compel the municipal court to order the dismissals. This appeal is taken by plaintiffs from a superior court judgment granting the peremptory writ.

By amendment operative January 1, 1970 (four days before the municipal court denied dismissal), Code of Civil Procedure section 583 provides in subdivision (a) thereof that 'The court, In its discretion, may dismiss an action for want of prosecution pursuant to this subdivision if it is not brought to trial within two years after it was filed. The procedure for obtaining such dismissal shall be in accordance with rules adopted by the Judicial Council.' (Stats.1969, ch. 958, pp. 1905--1906.) (Emphasis added.)

Likewise effective January 1, 1970, the Judicial Council adopted rule 203.5 of the California Rules of Court. Subdivision (e) of that rule states as follows: 'In ruling on the motion (under Code of Civil Procedure section 583, subdivision (a)) the court shall consider all matters relevant to a proper determination of the motion, including the court's file in the case and the affidavits and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process; the extent to which the parties engaged in any settlement negotiations or discussions; the diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party; the nature and complexity of the case; the law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case; the nature of any extensions of time or other delay attributable to either party; the condition of the court's calendar and the availability of an earlier trial date if the matter was ready for trial; whether the interests of justice are best served by dismissal or trial of the case or by imposing conditions on its dismissal or trial; and any other fact or circumstance relevant to a fair determination of the issue.' Subdivision (f) of the same rule provides that 'The court May grant or deny the motion or, where the facts warrant, the court may continue or defer its ruling on the matter pending performance by either party of any conditions relating to trial or dismissal of the case that may be required by the court to effectuate substantial justice.' (Emphasis added.)

The superior court judgment which is now before us was entered on February 20, 1970. In a minute order to the same effect dated January 23, 1970, the court relied on Court of Appeal decisions which held that, despite the discretionary language of section 583 (which has contained such language since 1905 ²), the burden of making an adequate showing of excusable delay was on the plaintiff. Such decisions were part of a line of intermediate appellate cases holding that it was an abuse of discretion for the trial court to deny dismissal where the plaintiff had failed to sustain that burden. All those cases were decided prior to January 1, 1970, which was the operative date of rule 203.5, supra, as well as the effective date of the statutory amendment authorizing that rule.

Shortly after plaintiffs filed notice of appeal from the judgment granting the writ, the state Supreme Court rendered its decision in Denham v. Superior Court (1970) 2 Cal.3d 557, 86 Cal.Rptr. 65, 468 P.2d 193. The Denham case expressly disapproved the Court of Appeal decisions which had been relied upon by the superior court. The Supreme Court made clear that section 583, subdivision (a), 'places no restrictions on the exercise of the trial court's discretion, and in particular there is no requirement that the motion to dismiss 'must' be granted unless opposed by an adequate showing of diligence or excuse for delay.' (2 Cal.3d at p. 563, 86 Cal.Rptr. at p. 69, 468 P.2d at p. 197.) The court reaffirmed its view, expressed over forty years before, that "It is only when there is an entire absence of any showing constituting good cause presented . . . upon the hearing of the motion to dismiss that a writ of mandate to compel the dismissal of the action may properly issue." (Id. at p. 564, 86 Cal.Rptr. at p. 69, 468 P.2d at p. 197.) (See also, Woolfson v. Personal Travel Service, Inc. (1971) 3 Cal.3d 909, 92 Cal.Rptr. 286, 479 P.2d 646; Rathbun v. Superior Court (1970) 8 Cal.App.3d 690, 694--695, 87 Cal.Rptr. 568.)

In Dunsmuir Masonic Temple v. Superior Court (1970) 12 Cal.App.3d 17, at page 21, 90 Cal.Rptr. 405, at page 407, this court analyzed the Denham decision as follows: 'The distinction appears to be the difference between an Adequate showing and Any showing. Although Denham removes from the plaintiff any Burden to show good cause for delay, it does not remove plaintiff's obligation to make Some showing of good cause before the court, upon which the court may exercise its discretion. We construe that to mean that the trial court may not act arbitrarily and deny the motion when plaintiff has made no relevant showing whatever. There must be Something upon which a discretion can rest.' (Original emphasis.)

The superior court judgment in the mandate proceeding recites that the matter was submitted for decision 'upon the record and files' of the three municipal court actions. ³ Those records showed that no affidavits or declarations under penalty of perjury were filed in the municipal court in connection with the motions; nor did those records indicate that any evidence was presented at the hearing thereon. Defendant's notices of motion were based on the chronology of the litigation as shown by the three files.

In opposition to the motions, plaintiffs submitted to the municipal court a memorandum that alleged certain facts which were Dehors the record, the thrust of which was to establish an excuse for the delay in prosecuting the actions. Plaintiffs' allegations were not made under oath or by equivalent declaration. In the mandate proceeding, however, the superior court was required to presume that the municipal court's orders denying dismissal were correct; and, since there was no contrary showing, the superior court was also required to presume that, at the municipal court hearing on the motions, defendant accepted as true (if in fact it did not admit) the allegation in plaintiffs memorandum which tended to support the subsequent orders of denial. (See, Denham v. Superior Court, supra, 2 Cal.3d at pp. 564--565, 86 Cal.Rptr. 65, 468 P.2d 193.) ⁴

At the time the motions were determined, the chronology of the litigation (as shown by the municipal court files and plaintiffs' memorandum submitted to that court) was as follows:

November 17, 1965--Complaints filed.

November 23, 1965--Defendant served.

November 26, 1965--For settlement purposes, plaintiffs granted defendant's request for an open extension of time to answer.

March 30, 1966--Plaintiffs notified defendant to file answers within ten days. (Plaintiffs thereafter gave defendant additional time to explore settlement.)

August 23 and 24, 1966--Answers filed.

November 2, 1967--Plaintiffs filed memorandum to set the three cases for trial.

November 13, 1967--The court set the cases for trial in late April and early May of 1968.

March 19, 1968--Plaintiffs filed interrogatories to defendant which had been served four days earlier.

April 1, 1968--Cases dropped from trial calendar at plaintiffs' request, after defendant had asked plaintiffs to do so to give defendant time to acquire new evidence.

May 8, 1968--Defendant filed answers to plaintiffs' interrogatories.

June 25, 1968--Defense counsel wrote to plaintiffs' counsel, stating in part: 'I have again contacted Mr. Applegate in an attempt to get something concrete for you. I appreciate your patience and to be quite frank if you do not hear from me in the next couple of weeks, I would suggest that you get (the cases) back on the trial calendar. This is somewhat embarrassing to me as I realize that you were accomodating us by having these cases dropped in the first place.'

August 5, 1968--Plaintiffs again filed memoranda to set.

August 23, 1968--The court set the cases for trial in mid-February 1969.

January 17, 1969--By stipulation, the court granted plaintiffs' motion to consolidate the three cases for trial.

Mid-February, 1969--Cases again dropped from trial calendar at plaintiffs' request, after defendant had agreed that this be done to give plaintiffs time to acquire documentary evidence.

April, 1969--The attorney handling plaintiffs' cases left the law firm which was counsel of record, and the cases were assigned to a new attorney in the same firm.

July 22, 1969--For the third time, plaintiffs filed memoranda to set.

August 15, 1969--The court set the cases for trial on January 28, 1970.

December 5, 1969--Defendant served and...