Brunzell Constr. Co. v. Wagner

• Decision Date: 05 May 1970
• Citation: 2 Cal.3d 545,468 P.2d 553,86 Cal.Rptr. 297
• Court: California Supreme Court
• Parties: , 468 P.2d 553 BRUNZELL CONSTRUCTION CO., INC., OF NEVADA, Plaintiff and Appellant, v. William C. WAGNER et al., Defendants and Respondents. L.A. 29724.

Page 297

86 Cal.Rptr. 297

2 Cal.3d 545, 468 P.2d 553

BRUNZELL CONSTRUCTION CO., INC., OF NEVADA, Plaintiff and Appellant, v. William C. WAGNER et al., Defendants and Respondents.

L.A. 29724.

Supreme Court of California,

In Bank.

May 5, 1970.

Rehearing Denied June 4, 1970.

Kalmbach, De Marco, Knapp & Chillingworth, Richard C. Greenberg, Los Angeles, and Leon J. Garrie, San Diego, for plaintiff and appellant.

Thelen, Marrin Johnson & Bridges, James M. Radnich, Andrew J. Nocas, Harry D. Palmer, Booth, Mitchell, Strange & William and E. Gary Smith, Los Angeles, for defendants and respondents.

TOBRINER, Justice.

Plaintiff Brunzell Construction Company of Nevada appeals from orders, rendered pursuant to section 583 of the Code of Civil Procedure, dismissing its action against certain defendants for failure to bring its suit to trial against them within five years of filing. Although numerous intervening proceedings have transpired between plaintiff and other named defendants which concededly excuse plaintiff's failure to bring the case to trial against those defendants, the trial court, relying on Ross v. George Pepperdine Foundation (1959) 174 Cal.App.2d 135, 141--143, 344 P.2d 368 apparently ruled as a matter of law that because the causes of action against the instant defendants were legally severable from the causes of action involving the other defendants, the recognized exception to section 583 in cases in which proceeding to trial would be 'impracticable and futile' could not be applicable. We have concluded that the bare fact of severability does not preclude the application of the 'impracticable and futile' exception as that doctrine has been consistently interpreted by this court.

This litigation arose out of the circumstances surrounding a contract between plaintiff contractor and Harreah's Club for the construction of a casino in Reno, Nevada. In its complaint, plaintiff joined the architects and the soil and structural engineers as codefendants with the owner, Harrah's Club, ¹ and the surety, Glens Falls Insurance Company; the architects and the soil and structural engineers are the only defendants involved in this appeal. ² The complaint, consisting of seven counts, alleged, inter alia, that various defendants were liable for (1) misrepresentation, fraud, and negligence in the preparation of the contract documents, (2) breach of contract, and (3) breach of express warranty. The defendants in the instant action were joined with the Harrah's Club defendants in the counts for misrepresentation and breach of warranty, and were the sole parties charged with negligence in preparing the contract documents--documents which the complaint characterized as 'defective, unfit, inaccurate, incomplete, self-contradictory and unsuitable for the purpose for which they were intended * * *.' The allegations of the complaint are summarized in considerably more detail in the margin. ³

The procedural chronology of the litigation is rather complicated but a brief review is necessary for a proper perspective on the present posture of the proceedings. ⁴ Plaintiff Brunzell's complaint was filed in the Los Angeles County Superior Court on June 11, 1962. A little over a month later, on July 19, 1962, Harrah's Club moved to quash service. Five days later, on July 24, 1962, Harrah's Club instituted its own suit in Nevada, naming Brunzell and the Glens Falls Insurance Company as defendants, and requesting an injunction to restrain Brunzell from proceeding in the California action. The Nevada trial court did not rule immediately on the injunction request.

On March 29, 1963, the California trial court granted Harrah's Club's motion to quash service in the California action. Thereafter, on August 23, 1963, the Nevada trial court, apparently relying on the California trial court's decision, granted Harrah's motion for an order enjoining Brunzell from proceeding in California, but reserved to Brunzell the right to prosecute its appeal from the California order quashing service. Brunzell did appeal the California trial court order and on May 25, 1964, the Court of Appeal reversed the order quashing service. (Brunzell Const. Co. v. Harrah's Club, supra, 225 Cal.App.2d 734, 37 Cal.Rptr. 659.)

Trial did not proceed immediately in California, however, for the injunction against Brunzell, issued August 23, 1963, by the Nevada trial court, was still outstanding, and on July 23, 1964, Harrah's Club obtained an order staying the California suit pending the termination of the Nevada injunction. That injunction was terminated on July 26, 1965, when the Supreme Court of Nevada reversed the original injunctive order of the Nevada trial court (Brunzell Const. Co. v. Harrah's Club (1965) 81 Nev. 414, 404 P.2d 902).

On September 3, 1965, less than two months after the Supreme Court of Nevada had dissolved the injunction, Brunzell moved in the Los Angeles County Superior Court for a preliminary injunction to restrain Harrah's Club from proceeding with its Nevada action. The court issued such an injunction on October 29, 1965; Harrah's Club appealed from that order, and on September 13, 1967, the Court of Appeal affirmed the issuance of the injunction (Brunzell Const. Co. v. Harrah's Club, supra, 253 Cal.App.2d 764, 62 Cal.Rptr. 505). Remittitur was filed on October 23, 1967.

One week later, on October 30 and 31, 1967, the defendants in the instant appeal, who were neither parties to nor participated in the above proceedings, moved to have the action against them dismissed under section 583 of the Code of Civil Procedure, for plaintiff's failure to bring the action to trial within five years. (The original complaint, it will be recalled, was filed on June 11, 1962.) The trial court, citing Ross v. George Pepperdine Foundation, supra, 174 Cal.App.2d 135, 344 P.2d 368, as authority, granted defendants' motions on November 16, 1967; ⁵ the order of dismissal was filed on January 22, 1968. This appeal by plaintiff followed.

Although section 583's requirement of dismissal of an action for failure to bring it to trial within five years is, by its terms, mandatory, ⁶ this court has long acknowledged that the purpose of the section is to 'prevent Avoidable delay for too long a period * * * not * * * arbitrarily to close the proceeding at all events in five years' (Christin v. Superior Court (1937) 9 Cal.2d 526, 532, 71 P.2d 205, 208) and to confine the section's operation to achieve that purpose, we have recognized an exception to the section 'where, for all practical purposes, going to trial would be impossible, whether this was because of total lack of jurisdiction in the strict sense, or because proceeding to trial would be both impracticable and futile.' (Christin v. Superior Court, supra, 9 Cal.2d 526, 533, 71 P.2d 205, 208; General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 93--97, 52 Cal.Rptr. 460, 416 P.2d 492; Rose v. Knapp (1951) 38 Cal.2d 114, 117--118, 237 P.2d 981; Pacific Greyhound Lines v. Superior Court (1946) 28 Cal.2d 61, 64--68, 168 P.2d 665.)

In the instant case plaintiff contends that during the pendency of the various intervening appeals and injunctions involving the Harrah's Club defendants it was 'impracticable and futile' for it to proceed to trial against the present defendants. ⁷ Plaintiff concedes that its causes of action against the two groups of defendants were legally severable, but it argues that, for all practical purposes, the similarity of the issues concerning all defendants and the complexity and probable expense of the anticipated trial rendered it 'impracticable and futile' to proceed solely against the instant defendants. The trial court apparently concluded that as long as the causes of action were severable, i.e., as long as it was Possible for plaintiff to bring its case to trial against the instant defendants, the 'impracticability and futility' exception did not apply and the exigencies of the particular case were therefore not relevant. Our prior case law renders such an interpretation of the 'impracticability' exception clearly too narrow.

In Christin v. Superior Court, supra, 9 Cal.2d 526, 532--533, 71 P.2d 205, one of the seminal decisions involving this implied exception to section 583, this court clearly indicated that the 'impracticability' exception could not be equated with strict impossibility. After reviewing the case of Kinard v. Jordan (1917) 175 Cal. 13, 16, 164 P. 894, in which this court recognized an exception to section 583 for the period of time that the trial court had no jurisdiction to proceed to trial, the Christin court declared: 'The theory of this decision seems to us to be equally applicable to a situation where, for all practical purposes, going to trial would be * * * both impracticable and futile. In this connection, a useful analogy may be drawn from the rules on impossibility as a defense in the enforcement of contract obligations. Modern cases recognize as a defense not only objective impossibility in the true sense, but also Impracticability due to excessive and unreasonable difficulty or expense. (Citations.)' (Italics added.)

This 'practical' view of the implied exception to section 583 was reiterated in Pacific Greyhound Lines v. Superior Court, supra, 28 Cal.2d 61, 168 P.2d 665, a case in many respects similar to the instant proceeding. In Pacific Greyhound several defendants in a personal injury suit moved for dismissal of the action under section 583. The trial court denied the motions of all the defendants on the grounds that during the five-year period One of the defendants had been in military service outside the state and 'that it was impossible or impracticable to try the case during the military service of such defendant.' In affirming the trial court decision, we specifically focused our inquiry on whether evidence in the record demonstrated that for some time during the five-year period 'it was 'impossible' or 'impracticable and...