Camille Corp. v. Superior Court of City and County of San Francisco

• Decision Date: 13 March 1969
• Citation: 75 Cal.Rptr. 868,270 Cal.App.2d 625
• Court: California Court of Appeals Court of Appeals
• Parties: CAMILLE CORPORATION dba Copenhagen Restaurant, and Peter Zane, Petitioners, v. SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; Bernard B. SCHNITZER, Real Party in Interest. Civ. 26320.

Page 868

75 Cal.Rptr. 868

270 Cal.App.2d 625

CAMILLE CORPORATION dba Copenhagen Restaurant, and Peter Zane, Petitioners, v. SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent Bernard B. SCHNITZER, Real Party in Interest.

Civ. 26320.

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

March 13, 1969.

Cesari & Werner, San Francisco, for petitioners.

Field, DeGoff & Rieman, San Francisco, for respondent and real party in interest.

ELKINGTON, Associate Justice.

By petition for writ of mandate Camille's Corporation and Peter Zane seek to compel the superior court to dismiss a personal injury action in which they are two of several defendants. It is contended that because plaintiff, Bernard B. Schnitzer, failed without legal excuse to bring the action to trial within five years, his action must, as a matter of law, be dismissed under Code of Civil Procedure, section 583.

Section 583, as relevant here, provides that 'Any action * * * shall be dismissed * * * unless such action is brought to trial within five years * * * except where the parties have filed a stipulation in writing that the time may be extended * * *.'

The operation of section 583 is Mandatory unless the plaintiff can bring his case within one of the statutory exceptions--here a stipulation in writing--or within an implied exception recognized by the courts. (See Anderson v. Erwyn, 247 Cal.App.2d 503, 505, 55 Cal.Rptr. 634, and authority there cited.) A recognized implied exception is "impracticability due to excessive and unreasonable difficulty or expense." (General Motors Corp. v. Superior Court, 65 Cal.2d 88, 94, 52 Cal.Rptr. 460, 464, 416 P.2d 492, 496.)

In the proceeding below plaintiff (real party here) made the following showing by way of declarations of his attorneys. There were two corporate defendants, including Camille's. A dispute arose between them as to insurance coverage, each claiming that the other's insurance carrier had the sole coverage. The defendants and their insurance carriers represented that they recognized plaintiff's action as a case of liability. They stated that a declaratory relief action would be commenced to resolve the insurance coverage question, that plaintiff would be promptly advised at its conclusion, and that settlement negotiations would thereupon commence. They requested that 'plaintiff take no further active steps with regard to this action, pending the determination of the declaratory relief action, because to do so would be futile and impractical because of the pending declaratory relief action and until such was determined, both defendants would resist in any and every way payment of any judgment rendered in favor of plaintiff; and agreed that the passage of any time with regard to the pending declaratory relief action would be without prejudice to the timeliness of plaintiff's proceeding with his action, if such became necessary, because plaintiff's claims could not be settled. * * * (P)laintiff justifiably relied on these representations and did not pursue further active litigation in this action because of the foregoing. But for the foregoing representations to (plaintiff) and his justifiable reliance thereon, (plaintiff) would have pursued active litigation and brought this action to trial.' Plaintiff never received notice or advice as to the status of the declaratory relief action. 'A request for a written stipulation in this action waiving or extending the five-year statute of limitations has been made to defendants' attorneys, but Mr. Werner (representing one defendant) has not responded to this request, despite numerous daily telephone calls to him in that regard and Mr. Burdick (representing the other defendant) advised that his principal would not authorize such * * *. Declarant was * * * deeply shocked at the refusal of the defendants to enter into a written stipulation to the extension of the five-year statute of limitations in this matter when such was requested, * * *'

The alleged representations of defendants, set forth in the last paragraph, were denied by counterdeclaration. However, the trial judge, considering the evidence, found in favor of the plaintiff. Insofar as he passed on the credibility of the declarants and the weight of the evidence, his finding is conclusive. (Anderson v. Erwyn, supra, 247 Cal.App.2d 503, 506, 55 Cal.Rptr. 634; Preiss v. Good Samaritan Hospital, 171 Cal.App.2d 559, 564, 340 P.2d 661.) Our task therefore is to determine whether plaintiff's declarations, found to be true by the court, adequately support the order denying the motion to dismiss.

Relying on General Motors Corp. v. Superior Court, supra, 65 Cal.2d 88, 94, 52 Cal.Rptr. 460, 416 P.2d 492, which as stated, recognizes the implied exceptions of 'impracticability,' plaintiff contends that it was 'impracticable' for him to proceed to trial within the five-year time limit of section 583.

We are presented with no authority, nor do we find any, which holds that oral assurances to counsel that a case will be settled after defendants iron out the question of liability render it 'impracticable' for a plaintiff to bring his case to trial. ¹ Certainly nothing in General Motors Corp. v. Superior Court, supra, 65 Cal.2d 88, 52 Cal.Rptr. 460, 416 P.2d 492, suggests such a result. That case, holding that the concept of 'impracticability' resists comprehensive definition, sets forth several applications of the rule. (pp. 94--96, 52 Cal.Rptr. 460, 416 P.2d 492.) None of them relates in any way to oral agreements, stipulations, representations or assurances made or relied upon by one or more of the parties.

Indeed, it is manifest that the very purpose of the section 583 exception requiring a written stipulation was to prevent the uncertainty that so often attends claims of oral understanding. Quoting from the leading authorities on this point the court in Anderson v. Erwyn, supra, 247 Cal.App.2d 503, 506--507, 55 Cal.Rptr. 634, 636, stated: 'The rule is set out in the leading case of Miller & Lux, Inc. v. Superior Court, 192 Cal. 333, 219 P. 1066: 'An examination of the cases construing section 583, Supra, discloses that no case decided by this court has held that anything short of a written stipulation extending in express terms the time of trial to a date beyond the five-year period, or expressly waiving the right to a dismissal under that section, will suffice to toll the running of the statutory time (p. 338, 219 P. p. 1008). * * * The provision that a written stipulation be entered into was intended to preclude all disputes, with their attendant charges and countercharges of overreaching and unethical conduct, by a requirement that clear and uncontrovertible evidence be presented to the court that the statutory time was deliberately intended to be extended by both parties.' (P. 340, 219 P. p. 1008.) Thus, it...