Breacher v. Breacher

• Decision Date: 21 March 1983
• Citation: 190 Cal.Rptr. 112,141 Cal.App.3d 89
• Court: California Court of Appeals Court of Appeals
• Parties: Florence BREACHER, Plaintiff and Appellant, v. Harold BREACHER, et al., Defendants and Respondents. Civ. 64986.

Page 112

190 Cal.Rptr. 112

141 Cal.App.3d 89

Florence BREACHER, Plaintiff and Appellant, v. Harold BREACHER, et al., Defendants and Respondents.

Civ. 64986.

Court of Appeal, Second District, Division 5, California.

March 21, 1983.

Hearing Denied May 18, 1983.

Bernard B. Cohen, Beverly Hills, Hufstedler, Miller, Carlson & Beardsley, Burton J. Gindler and Peter O. Israel, Los Angeles, for plaintiff and appellant.

Donald N. Woldman, Los Angeles, for defendants and respondents.

ASHBY, Associate Justice.

In this action for fraud plaintiff Florence Breacher appeals from an order dismissing her complaint pursuant to Code of Civil Procedure section 583, subdivision (b), for failure to bring the action to trial within five years after the filing of the complaint.

The complaint was filed on October 1, 1976. However, both plaintiff's counsel and defendants' counsel mistakenly believed that the complaint had not been filed until November 10, 1977. ¹ Neither counsel discovered the mistake until December 22, 1981, when the true filing date was pointed out to counsel by the court. Defendants then promptly moved for dismissal under section 583, subdivision (b). The trial court thereafter dismissed the action and this appeal followed.

We conclude the action was erroneously dismissed. Trial was originally set for a date within the five-year period, and all the subsequent delays in bringing the matter to trial fell within well-established tolling periods or exceptions to the statute.

Trial was originally set for September 21, 1981, which was prior to expiration of the five-year period. Trial was then continued to October 26, 1981, by the written stipulation of the parties. Section 583, subdivision (b), expressly provides that the time may be extended by the written stipulation of the parties. (4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, § 95, pp. 2756-2757.)

On October 26 the parties were placed on "beeper" call due to the court's congested trial calendar. Where a plaintiff has obtained a trial date and is prevented from going to trial because no courtroom is open, the delay for court congestion is not counted in calculating the five-year period. (Goers v. Superior Court, 57 Cal.App.3d 72, 74-75, 129 Cal.Rptr. 29; Bennett v. Bennett Cement Contractors, Inc., 125 Cal.App.3d 673, 677-678, 178 Cal.Rptr. 633; see Hartman v. Santamarina, 30 Cal.3d 762, 766, 180 Cal.Rptr. 337, 639 P.2d 979.)

On November 10, 1981, the cause was assigned to a trial judge, but defendants disqualified the judge under Code of Civil Procedure section 170.6. On November 13 it was assigned to another judge, who was disqualified by plaintiff under the same section. The cause was not assigned to a third judge until December 18, 1981. The period a trial is held in abeyance pending assignment of another judge pursuant to section 170.6 is to be disregarded in considering a subsequent motion to dismiss under section 583, subdivision (b). (Nail v. Osterholm, 13 Cal.App.3d 682, 686, 91 Cal.Rptr. 908; Hartman v. Santamarina, supra, 30 Cal.3d at p. 768, 180 Cal.Rptr. 337, 639 P.2d 979.)

The reasons why this case did not go to trial on December 18 are set forth in the uncontradicted affidavit of plaintiff's counsel in opposition to the motion to dismiss. On December 10 defendants' counsel had phoned plaintiff's counsel and stated that defendants wanted to go off beeper call during the Christmas/New Year holiday period. Plaintiff's counsel told him that plaintiff would not consent. On December 14 defendants' counsel phoned plaintiff's counsel and stated he would appear in department one the next morning to request the court to place the case off beeper call during the holiday season over plaintiff's objection. Later that day plaintiff's counsel discussed the matter with his client, who then authorized counsel to agree to go off beeper call during the holiday period until January 4, 1982. On December 15 both counsel appeared in department one at which time the court took the case off beeper call until January 4. On December 18 counsel were informed that the case had been assigned to the third judge for trial commencing after January 4. The judge requested counsel to meet with him on December 22 to discuss a date for commencement of trial. During the December 22 conference the judge pointed out, and counsel learned for the first time, that the complaint had been filed on October 1, 1976. Defense counsel immediately informed the court he would move to dismiss under section 583, subdivision (b).

Thus, the reason this case did not go to trial within the statutory period as extended by the above exceptions was that defendants did not want to be on beeper call during the Christmas/New Year's holidays. The delay was sought by defense counsel, who informed plaintiff's counsel he would request the delay from the court over plaintiff's objection if necessary. Under these circumstances, defendants should be estopped to seek dismissal under section 583, subdivision (b). (See Woley v. Turkus, 51 Cal.2d 402, 407-409, 334 P.2d 12; Tresway Aero, Inc. v. Superior Court, 5 Cal.3d 431, 438, 96 Cal.Rptr. 571, 487 P.2d 1211; Borglund v. Bombardier, Ltd., 121 Cal.App.3d 276, 279-280, 175 Cal.Rptr. 150; Holder v. Sheet Metal Worker's Internat. Assn., 121 Cal.App.3d 321, 325-327, 175 Cal.Rptr. 313.) In Holder v. Sheet Metal Worker's Internat. Assn., supra, ² the defendant's trial counsel, prior to the expiration of the statutory period, told the plaintiffs' counsel that he would request a continuance from the court. Plaintiffs' counsel did not object to the motion, which was granted to a date beyond the statutory period. However, defense counsel thereafter successfully moved for a dismissal. The appellate court reversed, stating that the defendant had selected a trial date beyond the statutory period which indicated defendant's willingness to excuse delay and his apparent satisfaction with his state of preparedness for trial. "Here, [defense counsel] represented to opposing counsel he wished to continue the case for trial. In his motion for continuance he made that same representation to the court. Having made that bargain, he is bound by it. To permit him to do otherwise is unseemly." (Holder v. Sheet Metal Worker's Internat. Assn., supra, 121 Cal.App.3d at p. 327, 175 Cal.Rptr. 313.)

The instant case is practically on all fours with Holder, but even more compellingly requires reversal. Here, at the time of defendants' request for delay, the parties were on beeper call, ready to go to trial, awaiting only the availability of a courtroom and a third judge. The holiday delay was at the initiative and insistence of defendants. As in Holder, it would be most unseemly to hold that after requesting and obtaining such a delay defendants...