Black Bros. Co. v. Superior Court for Los Angeles County

• Decision Date: 06 September 1968
• Citation: 265 Cal.App.2d 501,71 Cal.Rptr. 344
• Court: California Court of Appeals Court of Appeals
• Parties: BLACK BROTHERS CO., Inc., a corporation, Petitioner, v. The SUPERIOR COURT OF the STATE of California for the COUNTY OF LOS ANGELES, Respondent. John FERNANDES, Real Party in Interest. Civ. 33048.

Page 344

71 Cal.Rptr. 344

265 Cal.App.2d 501

BLACK BROTHERS CO., Inc., a corporation, Petitioner, v. The SUPERIOR COURT OF the STATE of California for the COUNTY OF LOS ANGELES, Respondent John FERNANDES, Real Party in Interest.

Civ. 33048.

Court of Appeal, Second District, Division 2, California.

Sept. 6, 1968.

Hearing Denied Oct. 30, 1968.

Chase, Rotchford, Drukker & Bogust and Lawrence O. de Coster, Los Angeles, for petitioner.

No appearance for respondent.

Lawrence R. Booth, Wilmington, and Daniel R. Sheahan, Los Angeles, for real party in interest.

McCOY, ^* Associate Justice Pro Tem.

This is a proceeding for a writ of mandate to compel the Superior Court for Los Angeles County to dismiss an action now pending in that court against petitioner and others.

On January 22, 1965, John Fernandes filed a complaint in the respondent court to recover damages for personal injuries allegedly suffered on January 24, 1964, while employed by Maid-Rite Cabinet Co. On March 26, 1968, petitioner, one of the defendants named in the complaint, noticed its motion for an order to dismiss the action against it pursuant to section 583 of the Code of Civil Procedure on the ground that plaintiff had failed for two years after it was filed to bring the action to trial. The motion, based upon the files and records in the action, was denied April 16, 1968. No other evidence was offered by petitioner in support of the motion. We have concluded that, in denying petitioner's motion, the respondent court abused its discretion.

There is no conflict in the evidence which was before the court when it heard petitioner's motion. The complaint filed January 22, 1965, names Black Brothers Co., Inc., a corporation, Southern California Machinery Co., and several John Does as defendants. It is alleged in the complaint that Black Brothers Co., Inc., herein sometimes referred to as defendant, was at all times involved in the case and is now doing business in California. Plaintiff alleges that he was injured while working on a certain 'glue spreader' which had been manufactured and transferred for sale by defendant Black Brothers Co., Inc. to the defendant Southern California Machinery Co., which in turn sold it to plaintiff's employer, Maid-Rite Cabinet Co., Inc. Plaintiff bases his right to recover damages on defendant's alleged negligence in the manufacture and sale of the 'glue spreader,' on defendant's breach of its implied warranty that the machine 'was safely usable for the purpose of applying glue to wood and other products; further that the rollers of said Machine were capable of being cleaned safely.' The accident happened January 24, 1964, just two days short of a year before the filing of the complaint. A summons was issued on the day the complaint was filed.

When plaintiff's complaint was filed proceedings were pending before the Industrial Accident Commission against plaintiff's employer and its compensation insurance carrier for an award of workmen's compensation benefits. These proceedings were terminated with an award in plaintiff's favor filed December 24, 1965.

In May 1966 plaintiff's present attorneys were substituted as his attorneys of record.

On January 8, 1968, plaintiff obtained an order for service of the summons on the defendant Black Brothers Co., Inc., pursuant to section 6501 of the Corporations Code. On January 16, 1968, the original summons was returned to the clerk and filed, together with a declaration that it had been served on A. T. Mitchell Machinery Company, sued and served as Doe VI, on January 9, 1968, and on defendant Southern California Machinery Co. on January 10, 1968, and a certificate by the Secretary of State that it had been served on defendant Black Brothers Co., Inc. on January 9, 1968, by mailing a copy of the summons and complaint and court order to it at 501 Ninth Avenue, Mendota, Illinois.

It is the policy of the law, as declared by the courts, that when a plaintiff exercises reasonable diligence in the prosecution of his action, the action should be tried on the merits. This policy is counter-balanced, however, by the policy declared by the Legislature and the courts that when a plaintiff fails to exercise reasonable diligence in the prosecution of his action it may be dismissed by the trial court. Thus, it is provided in section 583 of the Code of Civil Procedure that, with certain statutory and decisional exceptions, an action must be dismissed by the court on motion of the defendant on notice to plaintiff, or by the court on its own motion unless it has been brought to trial within five years after the plaintiff filed his action. (2 Witkin, California Procedure, Proceedings Without Trial, § 40, p. 1677.) Again, it is provided in section 581a that, subject to certain statutory exceptions, no action 'shall be further prosecuted, and no further proceedings shall be had therein' and the action 'must be dismissed' on motion of an interested party or on the court's own motion 'unless the summons shall be served and return thereon made within three years after the commencement of said action.' This provision is mandatory and jurisdictional and in a case coming within its provisions the court has no authority except to enter an order dismissing the action. (2 Witkin, California Procedure, Proceedings Without Trial, § 29, p. 1667.)

With respect to cases not brought to trial within two years, section 583 of the Code of Civil Procedure provides that the court shall exercise its discretion in granting or denying a motion to dismiss. That section, relied on by defendant here, provides in relevant part that 'The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such action to trial.' The purpose of this provision of section 583 is 'to compel reasonable diligence in the prosecution of an action after it has been commenced, thereby extending to the party or parties against whom it is brought an opportunity to properly present any defense which may be available at the time of the commencement of the action.' (Jensen v. Western Pac. R.R. Co., 189 Cal.App.2d 593, 596, 11 Cal.Rptr. 444, 446; Bonelli v. Chandler, 165 Cal.App.2d 267, 270, 331 P.2d 705.) In the exercise of its discretion under this section the trial court must keep in mind the duty of the plaintiff to use due diligence at all times to bring his action to a final determination, and the inherent discretionary power of the court, apart from the statute, to dismiss an action for lack of such diligence. (Witter v. Phelps, 163 Cal. 655, 657, 126 P. 593; Bernard v. Parmelee, 6 Cal.App. 537, 545, 92 P. 658; Lieb v. Lager, 9 Cal.App.2d 324, 327, 49 P.2d 886; 2 Witkin, California Procedure, Proceedings Without Trial, § 31, p. 1669.) As the court said in Bonelli v. Chandler, supra, 165 Cal.App.2d at 275, 331 P.2d at 710: 'It is the duty of a plaintiff to act, and to act with reasonable promptness and diligence, and defendant need make no move until the law requires him to do so 'in response to the movements of plaintiff at the various stages of the litigation.''

There is no inconsistency between the provisions of section 581a for the mandatory dismissal of an action if the summons is not served and returned within three years after commencement of the action, and those of section 583 providing for the dismissal of an action, in the discretion of the court, if it is not brought to trial within two years. In sprajc v. Scandinavian Airlines System, Inc., 240 Cal.App.2d 935, 50 Cal.Rptr. 181, it was argued that, since section 581a allows a plaintiff three years within which to serve and return the summons, a delay of only two years, without more, could not justify a dismissal under section 583 because of the failure of the plaintiff to bring his action to trial within two years. In rejecting this contention the court said (p. 939, 50 Cal.Rptr. p. 183): 'The cases clearly state that section 581a does not control the discretion of the court under section 583 (see Jackson v. De Benedetti, 39 Cal.App.2d 574, 579, 103 P.2d 990; Bonelli v. Chandler, supra, 165 Cal.App.2d, at pp. 276--278, 331 P.2d 705.)' (To the same effect see Lieb v. Lager, supra, 9 Cal.App.2d 324, 326--327, 49 P.2d 886.) On the contrary it was held in Anderson v. Nawa, 25 Cal.App. 151, 154, 143 P. 555, 556, that 'the unexplained and inexcusable failure to serve the summons within two years and ten months * * * Prima facie constituted good and sufficient ground of dismissal.'

It it apparent from the record that defendant Black Brothers Co., Inc., petitioner here, properly sought relief under section 583, invoking the discretionary power of the court. In making such a motion, it is not necessary that the motion be accompanied by any affidavit. (Simonini v. Jay Dee Leather Products Co., 85 Cal.App.2d 265, 267, 193 P.2d 53, 54.) In Simonini, as in the instant case, 'defendant was relying on the record to show that the case had not been brought to trial within the statutory two-year period, and the record itself is the best evidence of that fact. There is no statutory requirement that the notice of motion be accompanied by an affidavit.' The record in this case shows that the action was commenced on January 22, 1965, but that the summons was not served until January 9, 1968, notwithstanding the fact that plaintiff was aware of the identity and whereabouts of defendant corporation at the time of the commencement of the action (or, at least as early as March 25, 1965). Upon this showing, the burden was upon plaintiff to show that he had diligently prosecuted the action and that the delay was not unreasonable. In Bonelli v. Chandler, supra, 165 Cal.App.2d 267, p. 273, 331 P.2d 705, p. 709, the court said: 'The fact that there is no statutory requirement that a notice of motion to dismiss under section 583 be...