Bennett v. Bennett Cement Contractor's, Inc.

• Decision Date: 16 October 1981
• Citation: 125 Cal.App.3d 673,178 Cal.Rptr. 633
• Court: California Court of Appeals Court of Appeals
• Parties: James W. BENNETT, Plaintiff and Appellant, v. BENNETT CEMENT CONTRACTORS, INC., a corporation, and Herman C. Bennett, Defendants and Respondents. Civ. 20638.

Page 633

178 Cal.Rptr. 633

125 Cal.App.3d 673

James W. BENNETT, Plaintiff and Appellant, v. BENNETT CEMENT CONTRACTORS, INC., a corporation, and Herman C. Bennett, Defendants and Respondents.

Civ. 20638.

Court of Appeal, Third District, California.

Oct. 16, 1981.

As Modified Nov. 13, 1981.

Perkovich, Dauenhauer & Gums and Michael L. Gums, Sacramento, for plaintiff and appellant.

Max H. Hoseit, Herman L. Koelewyn, and Steven W. Linthicum, Sacramento, and D. Jack Haycock, Los Angeles, for defendants and respondents.

REYNOSO, Acting Presiding Justice.

Does the five-year statute apply when the failure is due to the court calendar and not to plaintiff's lack of diligence? James Bennett, plaintiff and appellant, appeals from a judgment of dismissal entered after the Yolo County Superior Court granted defendants' motion to dismiss based upon plaintiff's failure to bring the action to trial within five years from the date upon which it was filed. (Code Civ.Proc., § 583, subd. (b).) ¹ Under the facts of this case we conclude that the statute does not apply. Accordingly, we reverse.

I

Prior to October 1973, plaintiff and defendant Herman Bennett operated a cement contracting business under the name of Bennett Cement Contractors, Inc. In October 1973, it was agreed plaintiff would leave the business. Herman was assigned plaintiff's interest in the corporation's accounts receivables and he, Herman, agreed to assume and pay all outstanding corporate debts.

Thereafter, on or about November 5, 1974, Syar Industries, Inc., filed a complaint in Solano County Superior Court under action number 59781 seeking to recover damages from both Herman and plaintiff. The damages represented the unpaid balance on a debt allegedly owed by the corporation to Syar. Plaintiff discovered what he believed to be diversion of corporate funds by Herman and on October 31, 1975, filed a shareholder's derivative action in the Yolo County Superior Court under another action, number 33365. In addition, plaintiff filed a cross-complaint for indemnification against Herman in the then pending Solano County action. Eventually, the Syar Industries action was resolved through a settlement and a stipulation severing the remaining cross-complaint for indemnification and changing venue to Yolo County was entered on June 27, 1978.

When the cross-complaint was transferred to Yolo County, it was assigned Yolo County action number 38133. In April 1979, pursuant to request by plaintiff, an order was entered consolidating Yolo County action numbers 38133 and 33365. The consolidated matters were ordered advanced on the trial setting calendar for May 1979, and later set for trial on August 28, 1979. However, counsel for defendants successfully moved for a continuance of the trial date; the trial was continued to October 10, 1979. Thereafter, the trial was continued several times on the court's own motion: from October 10, 1979 to December 19, 1979; then to March 6, 1980; to May 22, 1980; to September 10, 1980; to November 4, 1980; to February 4, 1981. All such continuances were on the grounds that a courtroom was not available for the trial.

When the matter was called for trial on February 4, 1981, counsel for defendants indicated he intended to make a motion to dismiss action number 33365 asserting that the five-year period (subd. (b) of Code of Civ. Proc., § 583) had expired. The court continued the trial to March 10, 1981, and set February 19, 1981 as the date for hearing on the motion to dismiss. After hearing and argument, the matter was taken under submission. Thereafter, the court entered its order as follows: "Defendants ... have moved the Court for an order dismissing the above entitled action for failure to bring the action to trial within five (5) years of the date the action was commenced. (P) The Court finds that plaintiff, ... filed his action in this matter on October 31, 1975. Thus, more than five (5) years have elapsed since the filing of the action. The parties have entered into no stipulation in writing that the time limitation set forth in CCP 583(b) may be extended. (P) Good cause appearing, ... (P) ... this action is ordered dismissed under the provisions of Code of Civil Procedure § 583(b)."

II

In determining the propriety of the trial court's order dismissing the action, certain decisional law guidelines control. First, notwithstanding the apparently mandatory language of section 583, subdivision (b), ² it will not be applied in cases where it is impossible, impracticable or futile due to causes beyond a party's control to bring an action to trial during the five-year period. (Hocharian v. Superior Court (1981) 28 Cal.3d 714, 719, 170 Cal.Rptr. 790, 621 P.2d 829; Wyoming Pacific Oil Co. v. Preston (1958) 50 Cal.2d 736, 740, 329 P.2d 489; Wurnitsch v. Nordvik (1971) 14 Cal.App.3d 679, 684, 92 Cal.Rptr. 518.) The test is whether plaintiff had a reasonable opportunity to bring his case to trial. (14 Cal.App.3d at p. 685, 92 Cal.Rptr. 518; see Hocharian v. Superior Court, supra, 28 Cal.3d at pp. 720-722, 170 Cal.Rptr. 790, 621 P.2d 829.) "Each case must be decided on its own particular facts, and no fixed rule can be prescribed to guide the court in its exercise of this discretionary power under all circumstances." (Wyoming Pacific Oil Co. v. Preston, supra, 50 Cal.2d at p. 741, 329 P.2d 489.) The question whether plaintiff has had a reasonable opportunity to bring the case to trial is for the trial court to determine. The determination will not be disturbed if there is substantial evidence to support it. (Wurnitsch v. Nordvik, supra, 14 Cal.App.3d at p. 685, 92 Cal.Rptr. 518.)

The order dismissing the action, we conclude, is not supported by substantial evidence and thus constitutes an abuse of discretion. We look to a case involving a similar set of facts, Goers v. Superior Court (1976) 57 Cal.App.3d 72, 129 Cal.Rptr. 29, for guidance. In Goers, petitioner was given a trial date within the statutory period, but at the time set for trial there was no courtroom available. The matter was reset for another date which was also within the five-year period, but was trailed for lack of a courtroom and judge. Again the matter was reset, and again it was "trailed" for lack of a courtroom. The parties were then informed no judge or courtroom would be available until after the expiration of the five-year period. Petitioner sought a writ of mandate to compel the trial...