Bass v. Braun

• Court: California Court of Appeals
• Writing for the Court: SHEPARD; GRIFFIN, P. J., and COUGHLIN
• Citation: Bass v. Braun, 178 Cal.App.2d 744, 3 Cal.Rptr. 212 (Cal. App. 1960)
• Decision Date: 09 March 1960
• Parties: Frances T. BASS, Bert T. Baker, as guardian ad litem of Betty Jo Bass, a minor, Charlene Bass, a minor, Wanda Lavon Bass, a minor, and Mary Ruth Bass, a minor, Plaintiffs and Appellants, v. Paul J. BRAUN, Jesse J. Massman and Mildred F. Massman, doing business as Massman Service, Defendants and Respondents. Civ. 6038.

Page 212

3 Cal.Rptr. 212

178 Cal.App.2d 744

Frances T. BASS, Bert T. Baker, as guardian ad litem of Betty Jo Bass, a minor, Charlene Bass, a minor, Wanda Lavon Bass, a minor, and Mary Ruth Bass, a minor, Plaintiffs and Appellants, v. Paul J. BRAUN, Jesse J. Massman and Mildred F. Massman, doing business as Massman Service, Defendants and Respondents.

Civ. 6038.

District Court of Appeal, Fourth District, California.

March 9, 1960.

Fitz-Gerald Ames, Sr., San Francisco, for appellants.

Mack, Bianco, King & Eyherabide, Bakersfield, for respondents.

SHEPARD, Justice.

This is an appeal from a judgment of dismissal for failure to bring an action for wrongful death to trial within five years from the date of filing the complaint. The death resulted from an intersection collision which occurred November 25, 1952, in Kern County. The complaint was not filed until November 19, 1953, and the order for dismissal was made January 7, 1959.

The primary problem on appeal is whether or not the case comes within one of the judicially recognized exceptions allowing an extension of the mandatory time for trial provided by Code of Civil Procedure § 583. The principal facts relied upon by plaintiffs to excuse the delay in bringing the cause to trial within five years from the date of filing the complaint are as follows:

The defendants were not residents of the State of California at any time during the proceedings herein mentioned. Service of summons was delayed several months, partially because of plaintiffs' failure to correctly pursue the technical details of service and partly through necessary lapse of time in such compliance. However, through voluntary stipulation of all defentants involved in this appeal, the cause was fully at issue June 9, 1954. Plaintiffs' counsel caused investigations to be made in Kern County prior to filing the complaint and from the record it appears that he knew, or should have known, not only that the accident occurred in Kern County, but also that all of the principal known participant witnesses resided in that county. Nevertheless the action was filed in the County of San Francisco, more than 300 miles away. This resulted in a motion for change of venue on behalf of the defendants, resulting in some further delay. October 27, 1954, the cause was transferred to Kern County. The preliminary proceedings for trial were had and the matter was set down for trial for April 13, 1955. However, on February 7, 1955, the parties stipulated that the cause be dropped from the trial calendar.

Thereafter, the first move made by plaintiffs to bring the cause to trial was more than three years and two months later when, on April 27, 1958, plaintiffs deposited jury fees and requested setting for trial. Due to erroneous preliminary procedure by plaintiffs, more than two months additional time was lost. Thus, July 8, 1958, was the first time an effective memorandum to set was filed and the matter thereafter, in due course, reached the pretrial calendar on October 10, 1958. In the meantime defendants, on September 25, 1958, gave notice of motion to dismiss for failure to bring the action to trial within two years under the discretionary provisions of said section 583. October 2, 1958, the plaintiffs gave notice of motion to advance the cause on the calendar because the five-year time limit for trial was drawing uncomfortably close. These three motions were set for hearing together before the same judge on October 10, and continued to October 20. On October 21, 1958, the motion to dismiss was denied and two days later the matter was reset for pretrial conference on November 21, 1958. On November 17, 1958, defendants gave notice of a new motion for dismissal, this time under the mandatory provisions of said section 583 for failure to bring the action to trial within five years. This motion came on for hearing on November 21, 1958, was argued and submitted on briefs, and was granted on January 7, 1959. Lengthy affidavits were submitted by the parties for and against the first motion for dismissal, and from these affidavits it appears that there had been considerable activity in the writing of letters and in the taking of depositions, but there is no conclusive showing that all of these depositions could not have been taken as early as the year 1954 by diligent counsel. Neither is there any showing that defendants did or said anything to wilfully delay the action. There is a conflict as to oral conversations between counsel relating to waiver of the five-year limitation for trial.

We believe plaintiffs' contentions pertaining to delay occurring in the years 1953 and 1954 are not meritorious. In our opinion, the Statute does not contemplate excluding from the five-year period the time necessary for service of process, disposing of demurrers, correction of pleadings, and other customary foreseeable preliminary delays. Nor does the fact that the case was once set for trial and dropped from the calendar toll the five-year period. Lewis v. Greenspun, 160 Cal.App.2d 711, 715-716 [2, 3], 325 P.2d 551.

In the case at bar the cause was at issue with the counsel of record, on whom all notices could be served, less than a year after the filing of the action, so that the residence of the defendants outside the State did not toll the five-year period. 'When, however, such defendant has, or has had, an attorney of record for a sufficient time to enable the action to have been tried if the plaintiff had acted with due diligence, such period of absence or concealment shall be a part of said five-year period.' Code Civ.Proc. § 583; see also Hunt v. United Artists Studio, Inc., 79 Cal.App.2d 619, 624, 180 P.2d 460. From a review of the whole wording of said section 583, it appears exceedingly doubtful whether or not the legislature had in mind, in speaking of absence or concealment of a defendant, those defendants who were never residents of the State of California, but for purposes of this decision that would make no difference because if we should rule that the legislature did not have such defendants in mind there would be no exception to assist these plaintiffs in any event on that score.

Plaintiffs have cited a considerable number of cases in support of their contention that these periods of time in the early stages of this proceeding should be debucted from the five-year period, but we find them clearly distinguishable. Christin v. Superior Court, 9 Cal.2d 526, 71 P.2d 205, 112 A.L.R. 1153, involved the loss of nearly four years in a successful appeal from an order for change of venue, during which time it would have been clearly impossible to bring the action to trial. Rose v. Knapp, 38 Cal.2d 114, 237 P.2d 981, involved a loss of two years and four months through the existence of an outstanding judgment cancelling the certificate of sale and deed on which plaintiff's quiet title action was based. Pacific Greyhound Lines v. Superior Court, 28 Cal.2d 61, 168 P.2d 665, involved the loss of several years by absence of a defendant in the military service by reason of which section 521 of the Soldiers and Sailors Civil Relief...