Campanella v. Takaoka

• Decision Date: 28 September 1984
• Docket Number: No. B001298,B001298
• Citation: 160 Cal.App.3d 504,206 Cal.Rptr. 745
• Court: California Court of Appeals Court of Appeals
• Parties: Rose CAMPANELLA, Maria Reid Campanella, Plaintiffs and Appellants, v. Hirou TAKAOKA, Norio Utsunomiya, Defendants and Respondents.

Page 745

206 Cal.Rptr. 745

160 Cal.App.3d 504

Rose CAMPANELLA, Maria Reid Campanella, Plaintiffs and Appellants, v. Hirou TAKAOKA, Norio Utsunomiya, Defendants and Respondents.

No. B001298.

Court of Appeal, Second District, Division 7, California.

Sept. 28, 1984.

Binder & Cacciatore, Barry R. Binder, and Thomas P. Cacciatore, Los Angeles, for plaintiffs and appellants.

Stockdale, Peckham & Werner, and Paul F. Sowa, Los Angeles, for defendant and respondent Hirou Takaoka.

THOMPSON, Associate Justice.

Plaintiffs Rose Campanella and Maria Reid Campanella appeal from a judgment (order) of dismissal entered pursuant to CODE OF CIVIL PROCEDURE SECTION 583¹, subdivision (b), in favor of defendants on the ground that plaintiffs failed to bring the case to trial within five years from the date of the filing of the complaint. ² In this appeal we are called upon to determine whether the trial court properly granted the motion to dismiss ( § 583, subd. (b)), following its denial of the plaintiffs' motion to specially set the case for trial and its denial of the motion of each named defendant to dismiss pursuant to section 583, subdivision (a). For reasons to follow, we have concluded that the trial court erred in granting the motion.

Facts

On January 23, 1978, plaintiffs filed a complaint seeking damages against defendants Hirou Takaoka (Takaoka) and Norio Utsunomiya (Utsunomiya) for personal injuries, wrongful death and property damages.

On February 23, 1979, plaintiffs served Takaoka with a copy of the complaint and, thereafter, on February 27, 1979, served Utsunomiya. More than a year later, Utsunomiya answered the complaint on March 21, 1980, and Takaoka answered the complaint on April 1, 1980.

Thereafter, the only discovery undertaken in the case was by plaintiffs, who served Utsunomiya with a set of interrogatories and request for admissions on February 10, 1981, and who, on May 27, 1982, took the deposition of an independent witness to the accident.

On December 21, 1982, plaintiffs filed an At-Issue Memorandum, in which no pretrial conference was requested. Thereafter, on December 27, 1982, Takaoka also filed a "Counter" At-Issue Memorandum, in which no pretrial conference was requested.

Having decided to seek an early trial date, plaintiffs, on December 27, 1982, applied to the trial court for an ex parte order shortening the time to five days before the hearing for service on defendants of their motion to specially set the case for trial. In their application, plaintiffs informed the trial court inter alia that the five-year statute would run in the case on January 23, 1983, ³ and without such an order, plaintiffs' motion would be heard only two weeks prior to its running. Takaoka filed written opposition to plaintiffs' application, asserting that plaintiffs had failed to show good cause pursuant to section 1005 for a shortening of time. The trial court denied plaintiffs' application for an order shortening time.

On December 30, 1982, plaintiffs filed their motion to specially set the case for trial. The hearing on the motion was set for January 14, 1983, which was the next available court date to hear the motion following the denial of their application to shorten time. In support of the motion, plaintiffs' counsel alleged interalia that on December 16, 1982, his statute card system indicated that the five-year statute ( § 583, subd. (b)) would run on the case on January 23, 1983. Thereafter, when he checked the file, it was discovered that an At-Issue Memorandum was started but not completed, which he alleged was due to inadvertence between him and his secretary handling the file. Both Takaoka and Utsunomiya filed written opposition to plaintiffs' motion, in which they made general allegations of prejudice due to plaintiffs' delay. Each of them also filed a motion to dismiss pursuant to section 583, subdivision (a). On January 14, 1983, the trial court denied plaintiffs' motion to specially set the case for trial. The trial court also denied the motion of each defendant to dismiss.

On February 4, 1983, Takaoka filed a motion to dismiss pursuant to section 583, subdivision (b). Thereafter, on February 6, 1983, Utsunomiya filed a similar motion. On March 11, 1983, the trial court granted each motion to dismiss and entered an order of dismissal from which this appeal followed.

Discussion

Plaintiffs contend the dismissal was an abuse of discretion because their attempt to bring the matter to trial before the expiration of the five-year statutory period was rendered impossible, impracticable or futile by the trial court's denial of their motion to specially set their case for trial.

Section 583, subdivision (b), provides that a civil case "shall be dismissed" on the motion of the defendant or the court if it is not brought to trial within five years after the action is filed, except where the parties have filed a stipulation in writing that the time may be extended. Notwithstanding its mandatory language, decisional law has established certain implied exceptions where compliance with the statute is impossible, impracticable or futile. (Moran v. Superior Court (1983) 35 Cal.3d 229, 237-239, 197 Cal.Rptr. 546, 673 P.2d 216.)

"What is impossible, impracticable or futile must be determined in light of all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves. [Citations.] The critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case." (Id., at p. 239, 197 Cal.Rptr. 546, 673 P.2d 216; see e.g., Westinghouse Electric Corp. v. Superior Court (1983) 143 Cal.App.3d 95, 105-107, 191 Cal.Rptr. 549.)

In exercising reasonable diligence, a plaintiff has an affirmative duty to make every reasonable effort to bring his or her case to trial within five years, even during the last month of its statutory life. (Griffis v. S.S. Kresge Co. (1984) 150 Cal.App.3d 491, 497, 197 Cal.Rptr. 771; Central Mutual Ins. Co. v. Executive Motor Home Sales, Inc. (1983) 143 Cal.App.3d 791, 795, 192 Cal.Rptr. 169; Fluor Drilling Service, Inc. v. Superior Court (1982) 135 Cal.App.3d 1009, 1012, 186 Cal.Rptr. 9; State of California v. Superior Court (1979) 98 Cal.App.3d 643, 649, 159 Cal.Rptr. 650; Singelyn v. Superior Court (1976) 62 Cal.App.3d 972, 975, 133 Cal.Rptr. 486.) The law therefore provides a plaintiff with the following means to promptly perform this duty.

First, RULE 375(B) OF THE CALIFORNIA RULES OF COURT⁴ allows a party to make a motion in the trial court to specially set a case for trial after notice to all other parties. For example, in Elliano v. Assurance Co. of America (1975) 45 Cal.App.3d 170, 174-177, 119 Cal.Rptr. 653, plaintiff was allowed to specially set a case for trial on the last day of its statutory life, even though the motion was filed three days before the running of the statute.

Second and more importantly, a plaintiff can reasonably expect to receive an ex parte order shortening the time in which notice must be given, notwithstanding the requirement of 15 days' notice of a motion to obtain an early trial date under section 1005. (See, e.g., Moore v. El Camino Hosp. Dist. (1978) 78 Cal.App.3d 661, 664, 144 Cal.Rptr. 314; see also Griffis v. S.S. Kresge Co., supra, 150 Cal.App.3d at p. 498, 197 Cal.Rptr. 771; Elliano v. Assurance Co. of America, supra, 45 Cal.App.3d at p. 173, 119 Cal.Rptr. 653.) One significant qualification of this rule is the trial notice requirement of section 594, subdivision (a). That statute provides that an issue of fact may not be tried in the absence of an adverse party, unless it is shown to the satisfaction of the court that the adverse party had 15 days' notice of the date set for trial. (Irvine National Bank v. Han (1982) 130 Cal.App.3d 693, 697, 181 Cal.Rptr. 864.) Moreover, compliance with section 594 is mandatory and jurisdictional. (Ibid.; Bird v. McGuire (1963) 216 Cal.App.2d 702, 713, 31 Cal.Rptr. 386.) Furthermore, a court may not shorten the length of time prescribed by such notice though the period may be shortened by waiver, or by the consent of the parties. (See 4 Witkin, Cal. Procedure (2d ed. 1971) Trial, §§ 50, 51, pp. 2889-2891; 59 Cal.Jur.3d Trial, § 12, p. 469.)

Here, the record shows that, despite such reasonable expectation, the trial court denied plaintiffs' application for an order shortening the time to hear plaintiffs' motion for an early trial date. In fact, the motion was heard just 10 days before the running of the five-year statute. This situation made compliance with the 15 days' trial notice requirement impossible for plaintiffs. Compliance therefore depended upon the conduct of defendants in either creating a waiver to such notice or an excuse for noncompliance. (See, e.g., Elliano v. Assurance Co. of America, supra, 45 Cal.App.3d at p. 175, 119 Cal.Rptr. 653.)

Takaoka ⁵ argues that the trial court properly granted the motion to dismiss, following its denial of plaintiffs' motion to specially set the case for trial. In so arguing, Takaoka points to the 29 days remaining in which to bring the case to trial when plaintiffs applied for an ex parte order to shorten time as being unreasonably short, especially since no pretrial conference had been conducted.

Contrary to the argument of Takaoka, we find that, had the trial court granted plaintiffs' application for an order shortening time, the period of 29 days prior to the expiration of the five-year statute would have allowed sufficient time to permit trial.

For example, in Weeks v. Roberts (1968) 68 Cal.2d 802, 807-808, 69 Cal.Rptr. 305, 442 P.2d 361, our Supreme Court stated that 28 days was a reasonable time within which to set a matter for trial and that a refusal to set for trial within such a period constituted an abuse of discretion as a matter of law.

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