Baccus v. Superior Court

• Decision Date: 24 February 1989
• Docket Number: No. B036489,B036489
• Court: California Court of Appeals Court of Appeals
• Parties: Valerie BACCUS, et al., Petitioners, v. The SUPERIOR COURT of the County of Los Angeles, Respondent; Raleigh IRBY, et al., Real Parties in Interest.

Page 781

255 Cal.Rptr. 781

207 Cal.App.3d 1526

Valerie BACCUS, et al., Petitioners, v. The SUPERIOR COURT of the County of Los Angeles, Respondent;

Raleigh IRBY, et al., Real Parties in Interest.

No. B036489.

Court of Appeal, Second District, Division 7, California.

Feb. 24, 1989.

Wilson, Becks & Pyfrom, Eskel H. Solomon, and Paula C. Gentile, Los Angeles, for petitioners

No appearance for respondent.

Stuart D. Meyers, Beverly Hills, for real parties in interest.

LILLIE, Presiding Justice.

By petition for writ of mandate, petitioners, sued by real parties in interest for injuries sustained in a 1982 automobile accident, challenge an order of the superior court denying a motion to dismiss real parties' action for failure to bring it to trial within five years. (Code of Civ.Proc., §§ 583.310, 583.340, 583.360.) We issued alternative writ of mandate and order to show cause why the order of July 14, 1988, denying the motion to dismiss real parties' action should not be vacated and a new and different order dismissing the action be entered. We also issued an order staying the trial in the superior court pending further order of this court. Hearing has been had thereon. We conclude the petition for writ of mandate should be granted.

FACTUAL AND PROCEDURAL BACKGROUND

On May 2, 1983, real parties in interest, through their attorney, filed, but did not serve, a complaint against petitioners for damages arising out of an automobile accident on May 4, 1982. In December 1984 real parties, through a second attorney, filed and served petitioners with an amended complaint. In April 1986, almost three years after the action was filed, real parties retained a third attorney, who, in July 1986, moved to substitute himself as attorney of record for real parties and to have the matter ordered to arbitration. Real parties' motion also sought sanctions and attorney's fees against their second attorney, claiming that he failed on numerous occasions to sign a substitution of attorney, thus necessitating a motion for substitution. On September 12, 1986, the court granted real parties' motions. The matter was arbitrated on February 25, 1987 and the arbitrator's award was entered on March 1, 1987. On March 10, 1987, real parties requested a trial de novo and in late April 1987, the court set a trial date of June 20, 1988, a date over a year later and 49 days after the expiration of the five-year limitation period. (Code of Civ.Proc., § 583.310.) Neither at that time nor at any time prior to the trial date did real parties alert the court to the fact that trial had been set beyond the five-year period.

When the matter came on for trial on June 20, 1988, the court ordered the trial off calendar and set a hearing for July 14, 1988, to show cause why the court should not, on its own motion, enter an order dismissing the action. In their memorandum in opposition to the court's motion, real parties urged the court not to dismiss their case and argued that they were entitled to extend the statutory period for the following reasons: (1) On two separate occasions they granted extensions to petitioners--in October 1986 granting a month's extension to respond to interrogatories, and in January 1987 granting a 48-day continuance of the arbitration hearing date. (2) The "intransigence and sloth" of their first two attorneys made it impossible and futile for them to bring the case to trial during their relationships with those attorneys, i.e., during the first three years the case was pending.

After hearing, the court denied its motion to dismiss the action, stating that "[i]t's just weighing the entire picture, I think. And as counsel pointed out, it's discretionary with me. [p ] I'm going to deny the motion. I think it's a close one.... But I think, really, in the interest of basic justice--...."

Petitioners filed timely petition for writ of mandate directing respondent superior court to vacate its order of denial and to enter an order granting its motion for dismissal of the action.

I STANDARD OF REVIEW

"[M]andamus is available to review the denial of a motion to dismiss made pursuant to [former] section 583, subdivision (b)." (Westinghouse Electric Corp. v. Superior Court (1983) 143 Cal.App.3d 95, 101, 191 Cal.Rptr. 549.) "As in the case of a section 583(a) dismissal, a trial court's ruling on a motion to dismiss under [former] section 583(b) [see now Code Civ.Proc., § 583.310] will be disturbed only upon a showing of a manifest abuse of discretion.

[Citation.]" (Martin v. K & K Properties, Inc. (1987) 188 Cal.App.3d 1559, 1567, 234 Cal.Rptr. 161.)

II MANDATORY DISMISSAL

At the outset, petitioners contend that because the trial court referred to the "entire picture," of the case, it mistakenly applied the law for discretionary dismissals (Code Civ.Proc., § 583.410 et seq.) rather than that for a mandatory dismissal pursuant to Code of Civil Procedure, section 583.360. On this record, nothing suggests that either the parties or the court were relying on the discretionary dismissal statutes rather than on the mandatory dismissal statutes. We interpret the court's reference to the "entire picture" to be an application of the statutory exclusion whereby the time during which it is "impossible, impracticable or futile" to bring the action to trial is excluded in computing the five-year period. (Code Civ.Proc., § 583.340, subd. (c).)

Petitioners' primary contention is that dismissal is mandated by statute because real parties failed to make a showing of impossibility, impracticability, or futility. In the trial court, and in their brief filed in this court, real parties argue that it was impossible and impracticable for them to bring their case to trial for three and one-third years because their first two counsel did not exert any efforts on their behalf. These facts, they urge, constitute sufficient statutory grounds to extend the five-year statute for three and one-third years.

"An action shall be brought to trial within five years after the action is commenced against the defendant. (Code Civ.Proc., § 583.310.) The five-year period is tolled when it is "impossible, impracticable or futile" to comply therewith. (Code Civ.Proc., § 583.340, subd. (c).) Subdivision (c) of section 583.340 codifies the case law "impossible, impractical, or futile" standard, and must be interpreted liberally, consistent with the policy favoring trial on the merits. (See Cal. Law Revision Com. com., Deerings's Ann.Code Civ.Proc., § 583.340 (1972 ed., 1988 pocket supp.) p. 100.) " 'What is impossible, impracticable or futile must be determined in light of all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves. [Citations.] The critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case.' " (Hill v. Bingham (1986) 181 Cal.App.3d 1, 6, 225 Cal.Rptr. 905, emphasis in original.) Reasonable diligence places on a plaintiff the affirmative duty to make every reasonable effort to bring a case to trial within five years, even during the last month of its statutory life. (Id., at p. 10, 225 Cal.Rptr. 905.)

Time consumed by the delay caused by ordinary incidents of proceedings, like disposition of demurrer, amendment of pleadings, and the normal time of waiting for a place on the court's calendar are not within the contemplation of these exceptions. (Standard Oil Co. v. Superior Court (1976) 61 Cal.App.3d 852, 857, 132 Cal.Rptr. 761.) Moreover, reasonable diligence alone is not sufficient to protect a party from an involuntary dismissal; rather, reasonable diligence constitutes a guideline by which to assess the existing exceptions of impossibility, impracticability, or futility. (Lazelle v. Lovelady (1985) 171 Cal.App.3d 34, 39, 217 Cal.Rptr. 145.)

As a general rule an attorney's inexcusable neglect is chargeable to the client. (Freedman v. Pacific Gas & Electric Co. (1987) 196 Cal.App.3d 696, 705, 242 Cal.Rptr. 8.) Excepted from the rule are those instances in which the attorney's neglect is of that extreme degree amounting to positive misconduct, and the person seeking relief is relatively free from negligence; this exception is premised upon the concept the attorney's conduct, in effect, obliterates the existence of the attorney-client relationship. (Ibid.) However, delay alone does not constitute client abandonment or positive misconduct. (Id., at p. 707, 242 Cal.Rptr. 8.)

In arguing that the intransigence and sloth of their first two attorneys constitute sufficient grounds to toll the five-year period under section 583.340, subdivision (c), real parties in essence argue that they should not be charged with those attorneys' delay in moving the case to trial. Real parties contend that willful misconduct is shown by the fact that their second attorney was sanctioned $500 by the court, pursuant to Code of Civil Procedure section 128.5, for failing to sign a substitution of attorney. Under the applicable principles of law, real parties have not made a sufficient showing that they were "abandoned" in the sense that their attorneys were unavailable to them or failed to communicate with them, or that their attorneys were guilty of positive misconduct that made it impossible to prosecute the case. Thus, on the record before us, it would have been an abuse of discretion for the trial court to conclude the five-year period should be tolled during the time real parties were represented by their first two attorneys.

We also conclude that the two extensions granted petitioners by real parties' third attorney provide no basis to toll the five-year period inasmuch as such extensions are ordinary incidents of litigation and the power to grant or deny such extensions rested entirely in the hands of real parties. Thus, it cannot be said that such matters were beyond real parties' control,...