Clinton v. Joshua Hendy Corp.

• Decision Date: 12 August 1966
• Court: California Court of Appeals Court of Appeals
• Parties: Richard H. CLINTON, Plaintiff and Appellant, v. JOSHUA HENDY CORP., a California Corporation, the International Organization of Masters, Mates & Pilots, Inc., a New York Corporation, and its agency West Coast Local $90, an unincorporated association, and its sub-agency, West Coast Local $90, Wilmington Branch, and its President, Captain Robert E. Durkin, Defendants and Respondents. Civ. 29894.

Page 875

52 Cal.Rptr. 875

244 Cal.App.2d 183

Richard H. CLINTON, Plaintiff and Appellant, v. JOSHUA HENDY CORP., a California Corporation, the International Organization of Masters, Mates & Pilots, Inc., a New York Corporation, and its agency West Coast Local $90, an unincorporated association, and its sub-agency, West Coast Local $90, Wilmington Branch, and its President, Captain Robert E. Durkin, Defendants and Respondents.

Civ. 29894.

District Court of Appeal, Second District,

Division 1, California.

Aug. 12, 1966.

Sheldon Berlin, Van Nuys, for appellant.

Robert Sikes, by Leon A. Pinney, Hollywood, for respondents.

LILLIE, Justice.

Appellant filed an action for damages against various parties, including Joshua Hendy Corp., respondent herein, on June 11, 1959, in the municipal court; the same was transferred to the superior court on September 8, 1959. Thereafter, plaintiff took no steps to bring the action to trial against Joshua Hendy Corp. until a Certificate of Readiness was filed in latter 1964. No further action having been taken in that regard, Joshua Hendy Corp. on February 3 1965, filed its notice of motion to dismiss the complaint under the provisions of section 583, Code of Civil Procedure. On February 11, 1965, the motion was granted and the court entered its order dismissing the action as to 'ALL DEFENDANTS' under section 583. Plaintiff appeals from the order.

Over three years before, in 1961, other named defendants in the same action--International Organization of Masters, Mates & Pilots, West Coast Local No. 90, and Captain Robert E. Durkin, moved the court for a dismissal for want of prosecution. The motion was granted dismissing the action 'pursuant to the provisions of section 583 C.C.P.,' on October 20, 1961; accordingly, the suit was dismissed as to those defendants. Appellant took no appeal from this order of dismissal, but thereafter, on November 1, 1961, moved the superior court for 'Reconsiderating the Court's Order of Dismissal'; the motion was denied. Instead of appealing from the order of dismissal of October 21, 1961, he appealed from the order of November 1, 1961, denying his 'Motion for Reconsidering the Court's Order of Dismissal.' On February 14, 1963, Division Four of this Court in Clinton v. International Organization of Masters, Mates & Pilots, West Coast Local $90 and Captain Robert E. Durkin, 213 Cal.App.2d 36, 28 Cal.Rptr. 488, Civil No. 26330, filed its opinion dismissing the appeal on the ground that the order denying the motion for reconsideration is a non-appealable order. Plaintiff's petition for hearing in the Supreme Court was denied. Defendant Joshua Hendy Corp., respondent herein, was not a party to the above appeal nor to the proceedings in the superior court giving rise to the appeal. While it is true that the order of dismissal herein (February 11, 1965) was entered as to 'ALL DEFENDANTS,' it is apparent from the record that it applies solely to Joshua Hendy Corp., the moving party. The order in no manner affects International Organization of Masters, Mates & Pilots, West Coast Local $90, and Captain Robert E. Durkin, who, on February 11, 1965, were no longer parties to the action, the order dismissing the same as to them for want of prosecution under section 583 having been entered October 20, 1961, and become final. Appellant argues that the October 20, 1961, order of dismissal was ineffective because the dismissal was not 'in the form of a written order signed by the court' under section 581d, Code of Civil Procedure; but the argument is without merit because prior to 1963, under section 581d a dismissal in the form of a minute order was proper.

Shorn of its redundancies and irrelevant arguments concerning his subsequent 'Motion for Reconsideration and Vacation of Order of Dismissal' (on which no hearing was had and no order made), 'Notice of Intention & Motion For A New Trial' (which the trial judge ordered filed without setting for hearing because 'there can be no 'motion for new trial' after action dismissed for want of prosecution pursuant to C.C.P. § 583') and 'Motion For Bringing in New Parties Under 'C.C.P. $389" (not part of this appeal), appellant's brief urges primarily that under neither the mandatory nor discretionary provisions of section 583, Code of Civil Procedure, is the action against Joshua Hendy Corp. subject to dismissal.

Section 583, 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, (citing certain exceptions not here pertinent) * * * Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, (citing certain exceptions not here pertinent) * * *'

Operation of the five-year limitation provision of section 583, Code of Civil Procedure, is mandatory unless the plaintiff can bring his case within one of the exceptions made by the statute or within one of the implied exceptions recognized by decisions (Adams v. Superior Court, 52 Cal.2d 867, 870, 345 P.2d 466; Rose v. Knapp, 38 Cal.2d 114, 117, 237 P.2d 981; Eddings v. White, 229 Cal.App.2d 579, 584--585, 40 Cal.Rptr. 453; Tew v. Tew, 160 Cal.App.2d 141, 144, 324 P.2d 625); the burden of proving such exception lies with the plaintiff. (Muller v. Muller, 179 Cal.App.2d 815, 819, 4 Cal.Rptr. 419.) The action was filed in the municipal court on June 11, 1959, and transferred to the superior court on September 8, 1959; the same had not been brought to trial on or before February 11, 1965, almost five and one-half years later. Appellant argues that 'the time consumed during the prior appeal is tolled and such is not comprised in the five-year period, and hence the statutory five-year period has not elapsed.' He attempts to bring himself within the following exception set forth in section 583: 'When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a new trial (or when an appeal has been taken from an order granting a new trial and such order is affirmed on appeal), the action must be dismissed by the trial court, * * * unless brought to trial within three years from the date upon which remittitur is filed by the clerk of the trial court.'

This provision expressly applies only to a new trial of an action in which judgment has been entered and an appeal taken with reversal and remand for a new trial. 'The statutory language is clear and the limitation therein expressed is not subject to construction or interpretation.' (Muller v. Muller, 179 Cal.App.2d 815, 819, 4 Cal.Rptr. 419, 422.) The exception is not applicable herein for a variety of reasons. First, the appeal on which appellant relies to toll the five-year period was not one involving this respondent, Joshua Hendy Corp. Second, the 'appeal' to which appellant refers was taken by him from a nonappealable order--denying reconsideration of order of dismissal of action for want of prosecution. No appeal was taken from the appealable order of dismissal entered October 20, 1961, on the motion of the other defendants. Not only were parties other than Joshua Hendy Corp. involved in the so-called appellate proceeding, but actually no proper appeal was ever pending and the court so held, dismissing the same. (Clinton v. International Organization of Masters, Mates & Pilots, et al., 213 Cal.App.2d 36, 28 Cal.Rptr. 488, Civil No. 26330 (see opinion filed February 14, 1964).) Finally, no reversal of judgment or remand for a new trial contemplated by section 583 ever existed; nor was the purported appeal taken 'after judgment' as required by the statute, because no judgment has ever been rendered on any issue in the action. (Muller v. Muller, 179 Cal.App.2d 815, 819, 4 Cal.Rptr. 419.) Defendant Joshua Hendy Corp. was entitled to a dismissal, the action not having been brought to trial within the statutory five-year period.

Both parties have discussed dismissal of the action under the two-year provision of section 583 and, while we have concluded that the action was properly dismissed under the five-year provision, it further appears that the same could...