Coe v. City of Los Angeles

• Court: California Court of Appeals
• Writing for the Court: HASTINGS; EPSTEIN, Acting P.J., and CHARLES S. VOGEL
• Citation: Coe v. City of Los Angeles, 29 Cal.Rptr.2d 297, 24 Cal.App.4th 88 (Cal. App. 1994)
• Decision Date: 14 April 1994
• Docket Number: No. B067492,B067492
• Parties: Rita COE, et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent.

Page 297

29 Cal.Rptr.2d 297

24 Cal.App.4th 88

Rita COE, et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent.

No. B067492.

Court of Appeal, Second District, Division 4, California.

April 14, 1994.

Sparagna, Sparagna & Breslau and Francis A. Sparagna, Van Nuys, for plaintiffs and appellants.

James K. Hahn, City Atty., Thomas C. Hokinson, Sr. Asst. City Atty., and Renee J. Laurents, Deputy City Atty., for defendant and respondent.

HASTINGS, Associate Justice.

Appellants seek reversal of an order dismissing their complaint based upon violation of the five-year statute within which a matter must be brought to trial. (Code Civ.Proc., § 583.310.) ¹ They also contend that the trial court abused its discretion in failing to grant two ex-parte applications to reset trial prior to the running of the five-year statute. Commendably, respondent concedes that the trial court abused its discretion in failing to credit appellants with trailing time when no courtroom was available and, therefore, dismissal of the matter pursuant to the five-year statute was premature. We agree with both parties and reverse.

FACTS

On December 2, 1985, appellants were injured in an automobile accident. On October 16, 1986, they filed suit naming respondent City of Los Angeles as a defendant, claiming that defective maintenance of city streets caused the accident. On November 13, 1986, respondents answered the complaint and an At-Issue Memorandum was filed on November 18, 1986. The matter was ordered to arbitration which was held on February 11, 1988, resulting in an award in favor of the plaintiffs on February 12, 1988.

On March 1, 1988, respondent filed a Demand for a Trial de Novo. On June 8, 1988, the parties attended a mandatory settlement conference, the matter was not settled, and a trial date of June 26, 1989, was assigned. On June 26, the parties stipulated to a continuance to February 26, 1990. Appellants advise us in their opening brief that this was due to the fact appellant Rita Coe suffered a heart attack. This is not disputed by respondent.

On February 23, 1990, the parties attended a Crash Settlement Conference ordered by the court. The matter did not settle and trial was continued to October 15, 1990, on the court's own motion, due to a congested calendar. On October 15 the parties stipulated to continue the matter to May 6, 1991. On May 6, 1991, the matter again had to be continued, this time to August 15, 1991, because the trial judge became ill. On August 15, 1991, the parties stipulated to continue the matter to February 10, 1992, and the five-year statute was waived, in writing, to April 16, 1992.

On February 10, 1992, the case was reset for trial on March 16, 1992, due to congestion of the court calendar. On March 16, appellants' counsel had two court appearances and requested that his secretary contact Department A of the North Valley Superior Court (NV "A") where this case was pending, and advise the clerk that he would be late. She did so but was advised by the clerk "we don't do second calls" at which time the clerk hung up. Respondent's counsel appeared for the calendar call. The court again continued the case on its own motion, due to congestion of the court's calendar, to April 20, 1992. This was four days beyond the date to which the parties had stipulated the five-year statute would run. The following notation appears in the minute order: "Five year statute is not tolled by the Court and is not extended past the original extension date of 4-16-92, pursuant to stipulation of counsel on 8-15-91." After making his other court appearance, counsel for appellants called Department NV "A" to advise he was on his way. He was told by the clerk that the case had been continued to April 20, 1992. Counsel did not immediately appreciate that this was four days after the five-year statute would run.

On March 18, 1992, appellants' counsel noted that the trial date was beyond the extension of the five-year statute. On March 23, 1992, he brought an ex-parte application to advance the trial date or to extend the five-year statute. The foregoing facts were disclosed to the court by declaration of counsel, but the court denied the application with the notation "no good cause shown." The application was renewed on March 30, 1992, and again denied, this time with the following notations: "Case not diligently pursued & atty failed to appear without good cause. Denied. No good cause shown."

On March 31, 1992, apparently on the court's own motion, the matter was set for status conference on April 16, 1992, at 1:30 p.m. On April 2, 1992, respondent filed a motion to dismiss pursuant to section 583.360, subdivision (a) and set it for hearing on April 20, 1992. On April 16, 1992, the parties appeared for the status conference and the court set the trial date for April 17, 1992, in Department 1. Appellants' counsel was ordered to transport the court file to Department 1 and to pay $250 in sanctions per section 177.5 within 20 days. ²

On April 17, 1992, the matter was transferred back to NV "A" for ruling on respondent's motion to dismiss. The matter was argued on that date and ordered dismissed. ³ On April 20, 1992, the trial went off calendar due to the ruling of April 17, 1992. Notice of Appeal was filed May 14, 1992.

DISCUSSION

There is no doubt but that appellants wasted no time in prosecuting this matter. Within 33 days after filing of the suit they filed an At-Issue Memorandum. The matter was ordered to arbitration and the arbitration was concluded within two years and four months from the date of filing. A trial de novo was requested by respondent and eight separate trial dates were scheduled between June 26, 1989, and April 20, 1992. The first trial date was continued when one of the appellants had a heart attack; one trial date was continued because the judge became ill; two trial dates were continued by stipulation of counsel with no reason indicated; and on three separate occasions, including the last two trial dates, the court continued the matter because of court congestion. As soon as appellants' counsel realized that the last trial date was beyond the five-year statute, he notified the court and attempted to rectify the situation. The...