Carnation Co. v. Superior Court
| Citation | 1 Cal.App.3d 891,82 Cal.Rptr. 98 |
| Court | California Court of Appeals |
| Decision Date | 19 November 1969 |
| Parties | CARNATION COMPANY, a corporation, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent, Inez P. JOHNSON and Agricultural Insurance Company, a corporation, Real Parties in Interest. Civ. 35173. |
Booth, Mitchel, Strange & Willian and E. Gary Smith, Los Angeles, for petitioner.
Herlihy, Herlihy, Jones & Nelson and Katherine Stoll Burns, Los Angeles, for real party in interest, Agricultural Ins. Co., a corporation.
No appearance for real party in interest, Inez P. Johnson.
No appearance for respondent.
*
Petitioner seeks a writ of mandate to compel respondent court to dismiss a personal injury action brought by Real Party in Interest, Inez P. Johnson. Similar relief is also sought as to the Complaint in Intervention filed by Real Party in Interest, Agricultural Insurance Company, a corporation, Workmen's Compensation insurance carrier for Johnson.
On August 13, 1964, Inez P. Johnson filed a complaint for damages resulting from personal injuries allegedly sustained by her on August 15, 1963 by reason of the negligence of petitioner and its employees. On September 11, 1964, plaintiff filed a first amendment to the complaint, and on October 7, 1964, plaintiff filed a second amendment to her complaint. Thereafter, on October 14, 1964, petitioner was served with a copy of the complaint and on October 30, 1964, petitioner filed its answer. On November 2, 1964, an answer to the second amendment to the complaint was filed by petitioner.
Petitioner took the deposition of plaintiff on April 1, 1965. On September 22, 1965, petitioner took the deposition of Stephen P. Lascola pursuant to notice given to all parties. Counsel for plaintiff did not appear at said deposition. On September 29, 1965, petitioner took the deposition of Betty Kester pursuant to notice given to all parties. Again, there was no appearance for plaintiff at the deposition.
On October 25, 1966, Real Party in Interest, Agricultural Insurance Company, a corporation, filed its Complaint in Intervention. Petitioner filed its answer to said complaint on January 18, 1967. On August 10, 1967, petitioner took the deposition of Lester E. Nichols, M.D., and on August 11, 1967, petitioner took the deposition of Maurice N. Crakow, M.D. Although both depositions were duly noticed, counsel did not appear for either plaintiff or plaintiff in intervention when the depositions were taken.
Between May 22, 1967 and August 27, 1968, settlement negotiations involving attorneys for all of the parties ensued. Petitioner's final offer in settlement was conveyed to the parties, in writing, on August 27, 1968, but the offer was not accepted and negotiations terminated.
On July 12, 1969, plaintiff in intervention filed a Notice of Intention to Move for Early Trial. This motion was granted on July 24, 1969, without prejudice to petitioner's right to make a motion for dismissal under Code of Civil Procedure section 583. Trial was set by respondent for August 4, 1969.
On July 31, 1969, respondent denied petitioner's motion for dismissal for lack of prosecution as to both plaintiff and plaintiff in intervention.
The record reflects the fact that the plaintiff failed to file a Certificate of Readiness or an At-Issue-Memorandum at any time, failed to attend the court hearing on the motion for early trial setting held on July 24, 1969, failed to attend the hearing on the motion to dismiss held on July 31, 1969, filed no response to the alternative writ issued by this court, and failed to appear in this court on the date of oral argument, November 5, 1969.
We have concluded that the trial court did abuse its discretion in denying petitioner's motion to dismiss as to the plaintiff. We have further concluded that the respondent did not abuse its discretion in denying the motion to dismiss as to plaintiff in intervention.
Section 583 of the Code of Civil Procedure provides in pertinent part: '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, * * *.' This '* * * power to dismiss should be used 'in view of the facts of the entire situation,' taking into account any unusual circumstances, and acting to promote substantial justice.' (Weeks v. Roberts, 68 Cal.2d 802, 806, 69 Cal.Rptr. 305, 307, 442 P.2d 361, 363; Daley v. County of Butte, 227 Cal.App.2d 380, 394, 38 Cal.Rptr. 693; Ordway v. Arata, 150 Cal.App.2d 71, 75--79, 309 P.2d 919; Jepsen v. Sherry, 99 Cal.App.2d 119, 120--121, 220 P.2d 819, 822.)
When more than two years has elapsed from the date of the filing of a complaint, the burden shifts to the plaintiff to make a showing of excusable delay. (Breckenridge v. Mason, 256 Cal.App.2d 121, 127, 64 Cal.Rptr. 201; Sprajc v. Scandinavian Airlines System, Inc., 240 Cal.App.2d 935, 938, 50 Cal.Rptr. 181; PRICE V. GRAYSON, 276 CAL.APP.2D ---, ---, 80 CAL.RPTR. 602.)A 'As the time passes from two years nearer and nearer to five, the showing required to justify a failure to bring a case to trial grows greater and greater.' (Membrila v. Vonett Sales Co., 250 Cal.App.2d 299, 300, 58 Cal.Rptr. 544, 545.)
In effect, two bench marks are utilized by the trial judge in determining whether or not a plaintiff has met his burden of showing good cause for the delay in bringing a matter to trial. The first bench mark is a quantitative one--how much time has elapsed from the date of the filing of the complaint to the date of the filing of the motion to dismiss. The second bench mark is a qualitative one--the nature of the circumstances specified by the plaintiff as his excuse for not bringing the matter to trial at an earlier date.
No all-inclusive list of unusual circumstances that may be considered by the trial court can be set forth, but it would be reasonable for a trial court to consider factors such as delay caused by negotiations for a settlement, admissions of partial liability by a defendant, and extended law and motion and discovery proceedings. It should be emphasized, however, that an excuse that may toll the running of the statute for a period of time does not mean that the plaintiff has ipso facto met the burden of showing excusable delay at a later stage of the proceeding. The plaintiff has a duty to use due...
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