Bonelli v. Chandler

• Decision Date: 18 November 1958
• Court: California Court of Appeals Court of Appeals
• Parties: William G. BONELLI, Plaintiff and Appellant, v. Norman CHANDLER and Virgil Pinkley, Editor of 'The Mirror,' Defendants and Respondents. Civ. 23242.

Page 705

331 P.2d 705

165 Cal.App.2d 267

William G. BONELLI, Plaintiff and Appellant, v. Norman CHANDLER and Virgil Pinkley, Editor of 'The Mirror,' Defendants and Respondents.

Civ. 23242.

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

Nov. 18, 1958.

Rehearing Denied Dec. 12, 1958.

Hearing Denied Jan. 14, 1959.

A. Brigham Rose, Los Angeles, for appellant.

Cosgrove, Cramer, Diether & Rindge, Los Angeles, for respondents.

LILLIE, Justice.

A libel action was commenced by the filing of a complaint on October 7, 1954. Defendants were served with copies of summons and complaint on September 13, and September 16, 1957, respectively, almost three years thereafter.

On October 7, 1957, exactly three years after filing of the suit, defendants filed notice of motion to dismiss under section 583, Code of Civil Procedure, on the ground of want of prosecution and that there had been an inexcusable delay for more than two years after the action was filed to bring it to trial. The motion was granted and it is from the order of dismissal and judgment awarding costs to defendants, plaintiff appeals.

Appellant contends that the trial court abused its discretion in granting the motion and that 'section 583 C.C.P. is relegated to 'dismissal for delay in trial' and not for failure to effect service within the three year provision.'

Section 583, Code of Civil Procedure, reads in pertinent part as follows: '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, except where it be shown that defendant has been absent from the State or concealed therein and his whereabouts unknown to plaintiff and not discoverable to said plaintiff upon due diligence, in which event said period of absence or concealment shall not be part of said two-year period * * *'

Dismissal under the foregoing section lies within the broad discretion of the trial court and it will be disturbed only in cases of manifest abuse. Hillsdale Builders Supply Co. v. Eichler, 109 Cal.App.2d 117, 118, 240 P.2d 343; Hayashi v. Lorenz, 42 Cal.2d 848, 851, 271 P.2d 18. This discretion 'is one controlled by legal principles and is to be exercised in accordance with the spirit of the law and with a view of subserving, rather than defeating, the ends of substantial justice' (Jepsen v. Sherry, 99 Cal.App.2d 119, 121, 220 P.2d 819, 822; Ordway v. Arata, 150 Cal.App.2d 71, 309 P.2d 919); and not only is the trial court bound to consider whether plaintiff had a reasonable opportunity to bring the action to trial (Bank of America Nat. Trust & Savings Ass'n v. Superior Court, 84 Cal.App.2d 34, 38, 189 P.2d 799; Ojeda v. Municipal Court, 73 Cal.App.2d 226, 231, 166 P.2d 49) but whether plaintiff discharged the duty falling on every person who files an action to prosecute it with reasonable promptness and diligence. Netzley v. Hillstrom, 122 Cal.App.2d 417, 265 P.2d 57.

The defendants' motion was submitted by way of affidavits and the official record of the proceedings in the lower court. In considering an appeal from an order granted on a motion based on affidavits, and which involves a determination of a question of fact, if there is any conflict therein, those affidavits favoring the respondent are accepted by the reviewing court as true; and since all intendments are in favor of the ruling of the lower court, the affidavits in behalf of the successful party are deemed not only to establish the facts directly stated therein but all facts reasonably to be inferred from those stated (DeWit v. Glazier, 149 Cal.App.2d 75, 307 P.2d 1031; Doak v. Bruson, 152 Cal. 17, 91 P. 1001; West Coast Securities Co. v. Kilbourn, 110 Cal.App. 232, 294 P. 57); and 'when there is a substantial conflict in the facts stated, the determination of the controverted facts by the trial court will not be disturbed.' Hayutin v. Rudnick, 115 Cal.App.2d 138, 140, 251 P.2d 707, 708; Griffith Co. v. San Diego College for Women, 45 Cal.2d 501, 508, 289 P.2d 476, 47 A.L.R.2d 1349; Paulekas v. Paulekas, 117 Cal.App.2d 73, 77, 254 P.2d 941.

The Affidavit of John N. Cramer, filed with defendants' notice of motion, wherein he recited the status of the action disclosed by the official court record, recited among other things: That he is one of defendants' counsel and since October 7, 1954, when the action was filed and for a period of almost three years thereater, plaintiff did nothing in the prosecution of his action; that since then both defendants have resided in Los Angeles County and at all times have had offices in the city; that plaintiff on that date was a member of the State Board of Equalization with offices within two or three blocks of defendants'; that he was defeated for reelection at the polls, left California between November 2 and 8, 1954, indicted by the San Diego County grand jury for conspiracy to violate the State Election Code and arrested February 24, 1955, in Arizona; that he unsuccessfully resisted extradition to California in the Arizona courts and in August, 1956, entered the Republic of Mexico; that from October 7, 1954, until six months ago, plaintiff's attorney of record, A. Brigham Rose, had offices approximately three blocks from defendants'; that he (Cramer) believes defendants have a good and meritorious defense to the libel action--the plea of privilege, plea of truth, and a defense under section 48a, Civil Code, and to adequately prepare for trial it is necessary to interview many witnesses whose whereabouts are now unknown and, because of the unusual and complex factual situation, the almost three-year delay in serving them will result in an injustice and prejudice to defendants; that relative to their defense under section 48a, Civil Code, defendants are entitled to examine plaintiff under section 2055, Code of Civil Procedure, plaintiff 'has been a fugitive from justice' since February 24, 1955, and is now beyond the jurisdiction of this court; that because of the lapse of time and the fact plaintiff is a fugitive and one 'who contemns the ordinary processes of law of the State of California' it is difficult for defendants to proceed with the preparation and proof of their defenses; and the 'delay * * * in serving said summons and complaint upon defendants is wholly inexcusable and not caused by any act or acts of omission of said defendants or either of them or their counsel.'

In rebuttal of the statement and affidavit filed in behalf of plaintiff, defendants submitted three additional affidavits--Affidavit of Warren M. Trester, Deputy Marshal declaring that the Marshal's office received instructions from A. Brigham Rose for service of summons and complaint on defendants on September 13, 1957, at 8:13 a. m., and on the same day at 2:55 p. m. he served defendant Pinkley, and defendant Chandler, on September 16, 1957, at their offices without any difficulties; Affidavit of Wilma M. Drake, defendant Chandler's secretary, alleging she occupies a desk in the outer office, it is her custom to inquire of all visitors their business and to make arrangements for those desiring to serve legal documents on defendant personally if he is in his office and that if he is absent, to notify the server when he will be available for service, and she has never prevented service on defendant; and Affidavit of Josephine Ferguson, secretary to defendant Pinkley, reciting the availability of defendant Pinkley for personal service during the period in question.

In opposition to the motion, plaintiff filed Affidavit of A. Brigham Rose and a document designated 'Affidavit of Louis Laine,' which is actually an unsworn statement of a process server to the effect that he made in excess of forty sporadic visits to the offices of defendants in an attempt to effect service, and, in fact, in making daily trips, Monday through Friday, to the clerk's office 'he made it a practice almost every trip to the county clerk's office to try to effect service on defendants.' (During the two-year period this would have amounted to approximately 440 times.) The Affidavit of A. Brigham Rose, attorney for plaintiff, alleges in pertinent part that he left Los Angeles July 5, 1956, to practice law in San Diego where he has since been; that defendants since October 7, 1954, have known of the existence of the action and could have responded had they been so inclined; that, for over two years, one Louis Laine unsuccessfully attempted to effect service on defendants; and after importuning two women to serve them, he instructed the Marshal to serve defendants, which took him three weeks to do so. After declaring that the identity of those responsible for the publication and distribution of 'The Mirror' is unknown and that the newspaper was by design set up in obscurity, and charging defendants with various acts calculated to 'discredit' plaintiff, he further alleged that plaintiff intends to make himself available for deposition or any other matter before trial; that the criminal proceedings in San Diego were 'politically inspired'; that plaintiff is 'currently seeking political asylum' out of the country; that he believes defendants have been out of the jurisdiction and defendants should give an account of the time they have been absent from their offices from October 7, 1954, to September 13, 1957.

Appellant predicates his contention that the trial court abused its discretion mainly upon defendants' lack of showing that they were within the jurisdiction during the period in question and could have been served with process; and upon the showing that 'all efforts to effect service were futile.'

The fallacy of this argument is found in appellant's erroneous assumption that under section 583, Code of Civil Procedure, the burden of proving absence from the state and/or concealment therein is not on the plaintiff or...