Beswick v. Palo Verde Hospital Ass'n, Inc.

• Decision Date: 16 January 1961
• Citation: 188 Cal.App.2d 254,10 Cal.Rptr. 314
• Parties: Herbert G. BESWICK, Plaintiff and Appellant, v. PALO VERDE HOSPITAL ASSOCIATION, INC., a California corporation, et al., Defendants and Respondents. Civ. 6339.
• Court: California Court of Appeals Court of Appeals

Page 314

10 Cal.Rptr. 314

188 Cal.App.2d 254

Herbert G. BESWICK, Plaintiff and Appellant, v. PALO VERDE HOSPITAL ASSOCIATION, INC., a California corporation, et al., Defendants and Respondents.

Civ. 6339.

District Court of Appeal, Fourth District, California.

Jan. 16, 1961.

Richardson & Henderson and Benjamin W. Henderson, Palm Springs, for appellant.

Best, Best & Krieger and Arthur L. Littleworth and Gerald Brown, Riverside, for respondents.

COUGHLIN, Justice.

The issues for determination on this appeal are whether the trial court (1) erred in granting defendants' motion for dismissal upon the ground that the action had not been brought to trial within the five-year period prescribed by Section 583 of the Code of Civil Procedure, and (2) abused its discretion in previously denying plaintiff's motion for an early setting.

The action involved the alleged breach of a lease which occurred when the defendants, as lessors, ousted the plaintiff, as lessee, upon the ground that the plaintiff had operated the leased property in violation of the law for which he thereafter allegedly was convicted of the crime of grand theft in the state court and of the crime of making a fraudulent claim against the government in the federal court.

The complaint was filed on March 4, 1954; the action was not brought to trial within 5 years; and an order of dismissal was entered on March 11, 1959. The appeal is from this order.

In contending that the trial court erred in dismissing the action, appellant claims that the facts in this case bring it within the implied exceptions to the mandatory provision of Section 583 of the Code of Civil Procedure requiring a dismissal for failure to bring an action to trial within 5 years after the filing of the complaint, as noted in Rose v. Knapp, 38 Cal.2d 114, 117, 237 P.2d 981; Christin v. Superior Court, 9 Cal.2d 526, 71 P.2d 205, 112 A.L.R. 1153, and related cases. Although the area of exception has not been distinctly defined, it may be stated as a general rule that 'in computing the five-year period, time during which 'for all practical purposes, going to trial would be impossible, whether this was because of lack of jurisdiction in the strict sense, or because proceeding to trial would be both impractical and futile,' is to be excluded.' Pacific Greyhound Lines v. Superior Court, 28 Cal.2d 61, 64, 168 P.2d 665, 666.

'What is impossible, impracticable or futile must, of course, be determined in the light of the facts of the particular case.' Rose v. Knapp, supra, 38 Cal.2d 114, 117, 237 P.2d 981, 983.

Appellant contends that the record shows there were periods of time when the power to bring the action to trial was entirely beyond his control; that these periods should not be included in computing the five-year dismissal period; and their inclusion renders the order of dismissal erroneous.

In substance, the basis for the implied exceptions is that the court does not have jurisdiction over the cause during the time it is impossible, impracticable or futile to bring the case to trial and for this reason such time should be disregarded in computing the five-year dismissal period. Pacific Greyhound Lines v. Superior Court, supra, 28 Cal.2d 61, 64, 168 P.2d 665. However, the ordinary processes of bringing a case to trial do not deprive the court of jurisdiction over the cause within the meaning of the rule, and the time consumed as an incident thereto is not excluded from the computation. Continental Pac. Lines v. Superior Court, 142 Cal.App.2d 744, 750, 299 P.2d 417; Breakstone v. Giannini, 70 Cal.App.2d 224, 228, 160 P.2d 887.

'On the contrary, it has been held that '* * * even though a part of the five-year period must necessarily be consumed in service of process, disposition of demurrers, amendment of pleadings, if necessary, usual and reasonable time consumed in waiting for a place on the court's calendar or in securing the attendance of a jury and such like usual and necessary proceedings; * * * the section does not contemplate that time consumed in such ordinary proceedings are to be excluded from a computation of the five-year period.'' J. C. Penney Co. v. Superior Court, 52 Cal.2d 666, 670, 343 P.2d 919, 922; Continental Pac. Lines v. Superior Court, supra, 142 Cal.App.2d 744, 750, 299 P.2d 417; Breakstone v. Giannini, supra, 70 Cal.App.2d 244, 228, 160 P.2d 887.

The purpose of the statute is 'to prevent avoidable delay for too long a period.' Christin v. Superior Court, 9 Cal.2d 526, 532, 71 P.2d 205, 208, 112 A.L.R. 1153. Those instances which constitute the impossibility, impracticability or futility which come within the time impliedly excepted from the statutory period must be determined in the light of the purpose of the statute. As a consequence, every period of time during which the plaintiff does not have it within his power to bring the case to trial is not to be excluded in making the computation.

The evidence herein must be considered in the light of the time honored rule which presumes that the trial court accepted that version thereof which supports the order made. DeWit v. Glazier, 149 Cal.App.2d 75, 91, 307 P.2d 1031; Holt v. Pardue, 178 Cal.App.2d 528, 534, 3 Cal.Rptr. 225; Knight v. Pacific Gas & Elec. Co., 178 Cal.App.2d 923, 928, 3 Cal.Rptr. 600; Atkinson v. City of Los Angeles, 180 Cal.App.2d 467, 4 Cal.Rptr. 423.

The original complaint was filed on March 4, 1954. The cause came to issue by answer filed to the third amended complaint on October 11, 1954. The intervening six months had been consumed in correcting faulty pleadings. The loss of this time must be attributed to the plaintiff. A memorandum to set was not filed until two months later, viz., December 14, 1954, causing an additional loss of two months which also must be attributed to the plaintiff. On October 18, 1955 the case was set for trial on February 6, 1956. The intervening time must be attributed to the crowded condition of the court's calendar. However, the plaintiff did not answer the question on the prescribed form of memorandum to set as to whether the case properly should be tried in Department 4 of the trial court which sits at Indio, California. The case should have been assigned to this department and, upon receipt of a notice that the trial was scheduled before Department 2 in Riverside, the defendants moved for a transfer to Indio. The motion to transfer was granted on January 6, 1956 upon stipulation of counsel of both parties. The intervening loss of time must be attributed to the plaintiff's failure to file a proper memorandum. The action was assigned to Department 4 on January 6, 1956; three weeks later the plaintiff filed a memorandum to set; thereupon the trial was set for June 4, 1956; later was continued to September 4, 1956; then to November 13, 1956; and finally to March 18, 1957. All of these continuances were made by the court and were caused by the crowded condition of the calendar. However, as evidence of plaintiff's dilatory tactics, the materiality of which hereafter will be considered, it should be noted that during this time one of the attorneys for plaintiff delayed the taking of plaintiff's deposition; and on July 16, 1956 suggested that the case be continued until January, 1957 even though the attorneys for the defendants expressed their desire to waive the taking of plaintiff's deposition and try the case on the September 4, 1956 date. This occurrence took place before the trial court ordered a continuance from this date on its own motion.

Prior to the March 18, 1957 trial date, pretrial procedures became mandatory and the case was set for a pretrial hearing on February 8, 1957. However, the pretrial was continued at the...