Bella Vista Development Co. v. Superior Court In and For Marin County

• Decision Date: 20 December 1963
• Citation: 223 Cal.App.2d 603,36 Cal.Rptr. 106
• Parties: BELLA VISTA DEVELOPMENT CO., a corporation, and Bruce A. Werlhof, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF MARIN, Respondent. Ernest N. KETTENHOFEN and Bernice P. Kettenhofen, Real Parties in Interest. Civ. 21620.
• Court: California Court of Appeals Court of Appeals

Page 106

36 Cal.Rptr. 106

223 Cal.App.2d 603

BELLA VISTA DEVELOPMENT CO., a corporation, and Bruce A. Werlhof, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF MARIN, Respondent Ernest N. KETTENHOFEN and Bernice P. Kettenhofen, Real Parties in Interest.

Civ. 21620.

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

Dec. 20, 1963.

Wallace S. Myers, San Anselmo, for petitioners.

Bagshaw, Schaal, Martinelli, Weissich & Jordan, San Rafael, for respondent.

SULLIVAN, Justice.

Petitioners Bella Vista Development Co. and Bruce A. Werlhof seek a writ of prohibition restraining the respondent superior court from taking further proceedings in the hereinafter described civil action now pending therein. The sole question for our determination is whether said action was brought to trial within five years after it was filed and should therefore be dismissed by the court pursuant to Code of Civil Procedure section 583. We have concluded that it was not so brought to trial and that the writ should be granted.

The action in question entitled Ernest N. Kettenhofen and Bernice P. Kettenhofen, plaintiffs, v. Bella Vista Development Co., a corporation, Bruce A. Werlhof, defendants (petitioners herein), et al., was commenced in the court below on May 2, 1958. It was eventually set for trial by a jury on May 1, 1963. Notably such trial date was the day before the expiration of the five-year period for bringing an action to trial prescribed by Code of Civil Procedure section 583. On the morning of trial the court announced to the jury panel present in the courtroom that a number of legal matters had to be discussed before it proceeded with the impaneling of the jury and excused the panel until two o'clock in the afternoon.

The following then occurred: 'THE COURT: All right. Gentlemen, are both sides ready for whatever proceedings are now pending in Kettenhofen versus Bella Vista Development Company? MR. SCHAAL [Plaintiffs' counsel]: Yes, your Honor. At this time I would like to address a motion to amend the complaint. MR. MYERS [Defendants' counsel]: May I just say for the record that we are not prepared to--prepared for trial for the reasons that these matters are pending and need attention of the Court. THE COURT: Well, the Court was very careful not to call the case for trial.' (Emphasis added.)

Plaintiffs' counsel then asked leave to file an amendment to the complaint stating that a copy thereof had theretofore been delivered to defendants' (petitioners herein) counsel. The court allowed the amendment and inquired: 'Now, the next question is, is the case ready for trial?' Defendants' counsel replied: 'It is not.' Upon application of plaintiffs' counsel, the court then allowed certain amendments to be made on the face of said amendment to the complaint and granted defendants twenty days to answer. ¹

During the course of the colloquy between the court and counsel for both sides, the court observed: 'You will have to answer to demurrer or move to strike, and if you answer, it will have to be reset for trial. * * * but I think in all fairness the defendants are entitled to determine what the best tactics would be under the circumstances.' Defendants' (petitioners') counsel responded: 'We will do whatever your Honor wishes. If your Honor wants to continue this same case and this same jury until next week, that is fine. If you want to take it off, and grant twenty or thirty days so that all of these things can be resolved, and go right to trial, that is agreeable with us; either way.' Finally the court declared that it would await defendants' response to the amendment before making a determination of the legal issues to be disposed of and that it would not therefore be necessary for the parties to reappear in court in twenty days. The proceedings were then terminated and the jury panel dismissed by stipulation of counsel.

On June 3, 1963, defendants (petitioners herein) moved the court below for an order of dismissal on the ground that action had not been brought to trial within five years after it was filed as provided in Code of Civil Procedure section 583. The record before us does not disclose what, if any, pleadings had been filed or proceedings taken therein in the interim. Petitioners' motion was denied on August 30, 1963.

On October 2, 1963, petitioners filed herein the instant petition for writ of prohibition alleging in substance the foregoing procedural developments and that unless such writ is issued by us, the aforementioned cause will be set down for trial in the respondent court 'contrary to law and to the requirements of Section 583.' We issued an alternative writ of prohibition on October 18, 1963. 'Either a writ of mandate to compel dismissal or a writ of prohibition to prevent the trial of the action is an appropriate remedy after the time prescribed by section 583 has expired. [Citations.]' (J. C. Penney Co. v. Superior Court (1959) 52 Cal.2d 666, 669, 343 P.2d 919, 921.)

Section 583 of the Code of Civil Procedure provides in relevant part as follows 'Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, * * *.' (Emphasis added.) The statute thereafter provides for certain express exceptions to such mandatory dismissal 'where the parties have filed a stipulation in writing that the time may be extended' and 'where it be shown that the defendant has been absent from the State or concealed therein * * *.' Such exceptions are not here involved.

The position of the real parties in interest on this appeal (plaintiffs Kettenhofen below) may be summarized as follows: (1) That the proceedings before the court on May 1, 1963, constituted a trial within the meaning of section 583 of the Code of Civil Procedure; (2) that proceedings theretofore had in July and August 1960 relating to petitioners' motion for a summary judgment constituted a trial within said statute; and (3) that petitioners are estopped from urging a mandatory dismissal pursuant to the statute.

The above statute becomes operative only if the action is not brought to trial at all within the prescribed period. If the trial is commenced, the case is taken out of the statute, even though the proceedings amount only to a partial hearing. (Mussat v. Superior Court (1936) 16 Cal.App.2d 291, 292, 60 P.2d 323.) 'It has frequently been held that a partial trial within the prescribed period takes the case out of the operation of that section [§ 583]. [Citations.]' (Meier v. Superior Court (1942) 55 Cal.App.2d 675, 676, 131 P.2d 554, 555.)

'A 'trial' is the examination before a competent tribunal, according to the law of the land, of questions of fact or of law put in issue by pleadings, for the purpose of determining the rights of parties. [Citations.]' (Adams v. Superior Court (1959) 52 Cal.2d 867, 870, 345 P.2d 466, 469; Berri v. Superior Court (1955) 43 Cal.2d 856, 859, 279 P.2d 8.) As the court points out in Berri, supra: 'With regard to the running of the five-year period, it has been held that the determination or a hearing on a demurrer to the complaint is not a trial within the meaning of section 583 of the Code of Civil Procedure and hence the action is subject to dismissal after the five-year period has expired unless the ruling on demurrer is a final determination of the case. [Citations.] When the demurrer has been sustained and judgment of dismissal has been entered there has been a trial and the action is not subject to dismissal under section 583. [Citations.] * * * The essential thing is that the action be brought to a stage where final disposition is to be made of it.' (Pp. 858-860 of 43 Cal.2d, pp 10, of 279 P.2d; emphasis added. See also Meier v. Superior Court, supra, 55 Cal.App.2d 675, 678, 131 P.2d 554; Ross v. George Pepperdine Foundation (1959) 174 Cal.App.2d 135, 139, 344 P.2d 368; Mass v. Superior Court (1961) 197 Cal.App.2d 430, 433-435, 17 Cal.Rptr. 549.)

The instant case was to be tried before a jury. It is settled that the impaneling of a jury is part of the trial. (Silcox v. Lang (1889) 78 Cal. 118, 124, 20 P. 297; Kadota v. City & County of San Francisco (1958) 166 Cal.App.2d 194, 195-196, 333 P.2d 75.) As Kadota, supra, points out: Where the trial is before the court without a jury, the action is not ordinarily 'brought to trial' within the meaning of Code of Civil Procedure section 583 until at least one witness is called and gives some testimony; where, however, the case is set for trial before a jury, the case is 'brought to trial' when the parties commence the examination of prospective jurors and the impanelment of the jury. In the case at bench, no proceedings for the impanelment of the jury were ever commenced on May 1, 1963, or at any other time.

It is too clear to require extended discussion that the hearing and granting of plaintiffs' (real parties in interest herein) motion for leave to file an amendment to the complaint was not a trial within the authorities set forth by us above. The granting of such motion was in no sense a 'final determination of the case.' (Berri v. Superior Court, supra, 43 Cal.2d 856, 279 P.2d 8.) Nor did such proceedings have the effect of extending the five-year period of the statute. Amendment of pleadings is one of the ordinary processes involved in bringing a case to trial and the time consumed in such proceedings is not to be excluded in computing the five-year period. (J. C. Penney Co. v. Superior Court, supra, 52 Cal.2d 666, 670, 343 P.2d 919; Continental Pac. Lines v. Superior Court (1956) 142 Cal.App.2d 744, 750, 299 P.2d 417; Beswick v. Palo Verde Hospital Assn. (1961) 188 Cal.App.2d 254, 257-258, 10 Cal.Rptr. 314.)

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