Continental Pac. Lines v. Superior Court In and For Solano County

• Court: California Court of Appeals
• Writing for the Court: VAN DYKE; SCHOTTKY, J., and McMURRAY
• Citation: Continental Pac. Lines v. Superior Court In and For Solano County, 299 P.2d 417, 142 Cal.App.2d 744 (Cal. App. 1956)
• Decision Date: 02 July 1956
• Parties: CONTINENTAL PACIFIC LINES, a corporation, and West Coast Bus Lines, Limited, a corporation, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY of SOLANO, Respondent, Mary E. Krepps, Real Party in Interest. WEST COAST BUS LINES, Limited, a corporation, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY of SOLANO, Respondent, Elma J. Bryant and Lynwood O. Johnson, an infant, by his guardian ad litem, Elma J. Bryant, Real Parties in Interest. Civ. 9003, 9004.

Page 417

299 P.2d 417

142 Cal.App.2d 744

CONTINENTAL PACIFIC LINES, a corporation, and West Coast Bus Lines, Limited, a corporation, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY of SOLANO, Respondent, Mary E. Krepps, Real Party in Interest. WEST COAST BUS LINES, Limited, a corporation, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY of SOLANO, Respondent, Elma J. Bryant and Lynwood O. Johnson, an infant, by his guardian ad litem, Elma J. Bryant, Real Parties in Interest.

Civ. 9003, 9004.

District Court of Appeal, Third District, California.

July 2, 1956.

Theodore Tamba, San Francisco, for petitioners.

Ernest E. Emmons, Jr., San Francisco, for real party in interest.

VAN DYKE, Presiding Justice.

Two actions were begun in the respondent court, in each of which the plaintiffs sought to recover damages for personal injuries alleged to have been negligently inflicted. The actions were consolidated for trial. In each certain defendants moved for dismissal under Section 583 of the Code of Civil Procedure, the statute which requires trial within five years from the date an action is begun. Respondent court denied both motions, and the moving parties have petitioned this court for a writ of mandate directing the respondent court to dismiss the actions. Both petitions have been presented together, and a single opinion will suffice to dispose of the issues presented by each. The facts in each case will be presented under the rule that we must here adopt that view of the facts most favorable to the ruling of the trial court.

In Continental Pacific Lines v. Superior Court, Mary E. Krepps, real party, the following appears from the record: Real party began her action on September 26, 1950. She alleged both corporations, Continental Pacific Lines and West Coast Bus Lines, Ltd., were, on the occasion of her injuries, operating a bus in which she was a passenger and which was driven by their employee. She alleged the accident to have been caused by the concurring negligence of the bus driver and a Leonard Hammond, who was driving an automobile owned by one Frank Evans. She joined the bus driver, Hammond, and Evans as defendants. Petitioners answered the complaint on October 10, 1950. They admitted that Mary Krepps was a passenger for hire in a bus owned and operated by them. The cause was set for trial in April of 1953, but before that date real party's attorneys (not her present counsel) asked that the case be dropped from the calendar. Petitioners' attorney, Theodore Tamba, at that time wrote to the clerk of the court as follows: 'This will serve to confirm statement made by * * * one of the attorneys for the plaintiff. * * * In accordance with his suggestion, I would stipulate that the trial date be vacated, to be reset on stipulation or on request of either party hereafter.' The cause was dropped from the trial calendar, and on September 16, 1955, a trial date was again asked. Petitioners then filed a demand for a jury trial. On October 26, 1955, more than five years after the action had been commenced, petitioners filed a motion to dismiss because the cause had not been brought to trial within five years. In support of their motion they filed affidavits in which they stated they had been ready to proceed to trial at all times after issue joined. It is not contended they ever at any time requested any continuance or requested that trial be postponed. From counter-affidavits the following substantially appears: When the complaint was filed, plaintiff and her attorneys did not know the name of the bus driver. The attorneys intended to take his deposition as a material witness. We quote the following from an affidavit made by plaintiff's present counsel: 'That by correspondence with and the oral representation of the said Theodore Tambla, attorney for said defendant bus company, said attorney represented to plaintiff's attorneys that Frank Reprey, bus driver, resided outside the state of California, and that the defendant West Coast Trailways refused to permit him to return to California for the purpose of service on him of copies of Summons and Complaint or of a subpoena to take his deposition.' The affiant further averred that as a result of the bus driver's being outside the state and of 'the refusal by said attorney to produce said defendant in this state,' service of summons and complaint on him, and service of subpoena to take his deposition before trial was 'impossible and plaintiff was thereby prevented from serving him or taking his deposition.' It was made to appear that the defendant bus driver was a material witness to the accident. The affiant made reference to the proceedings in the companion case (counsel for plaintiff were the same in each case), and asserted that they had been compelled to drop the companion case from the trial calendar because of their inability to obtain service of process on the bus driver. The affiant averred: '[T]hat as a result, it would have been a useless task for plaintiff herein to file a memorandum to set the case for trial; that efforts were continously made to ascertain the whereabouts of the said defendant Frank Reprey [the bus driver] from Theodore Tamba, attorney for defendant West Coast Trailways, without success.' (Emphasis added.) The affiant further averred that despite the absence of the bus driver and the continued refusal of defendant and its counsel to produce the bus driver for service of process and for the taking of his deposition, the affiant filed a memorandum to set the action for trial on September 16, 1955, asking for trial by the court, whereupon the defendants, through their attorney, 'knowing that the delay in the jury calendar would be greatest in getting the case to trial,' made demand for a jury. Affiant then averred that the other two defendants, Hammond and Evans, since shortly after filing their answers, had been continuously residing outside the state, had continuously evaded service of process upon them; and that plaintiff had diligently sought for three years past to effect service of summons and complaint and of subpoenas for the taking of their depositions without success, 'for the reason that said defendants reside outside the state of California and cannot be found within this state.' Attorney Tamba by a counter-affidavit denied that he had at any time told attorneys for plaintiffs that the defendants for whom he appeared had refused to permit the driver of the bus to come to California for the purpose of having his deposition taken or otherwise. Here, of course, we must accept the version presented in the affidavit of the plaintiff in the action in opposition to the motion to dismiss, noting, however, what appears of record to be the case, that Mr. Tamba was not the attorney of record for the bus driver.

In the companion case begun by real parties Elma J. Bryant and Lynwood O. Johnson, an infant by his guardian ad litem, much the same showing was made in opposition to the motion to dismiss as hereinbefore related in case of Mary E. Krepps. There were the same allegations of representation by Mr. Tamba as to the bus driver's residence without the state and of the 'refusal' to permit him to return. There was the same claim that the plaintiffs in the action had been unable to take the deposition of the bus driver. There was the same claim that by what they had done the defendants and their attorney had 'prevented' the taking of that deposition or the service on the bus driver of summons and complaint. It was averred that a memorandum to set for trial had been filed on August 16, 1951, and that the trial had been set for November 26, 1951, but 'because said defendant bus driver had not been served or his deposition taken, said action was dropped from the calendar to be reset by the filing of a new memorandum to set'; and the affiant declared that 'in the light of the absence of said defendant bus driver and the continual refusal * * * to produce him for service of summons and complaint or the taking of his deposition,' the affiant had filed a memorandum to set the cause for trial on September 16, 1955, asking for a court trial; that a demand for jury had then been made by the defendants; that the bus driver had not been represented by an attorney in the action; and that the defendants Hammond and Evans, though appearing, had appeared in propria persona; that all three defendants had been absent from the state for more than three years prior to the date of the affidavit, and it was averred that 'although plaintiff has during such period diligently sought to locate them through investigators and continued requests made to Theodore Tamba, attorney for defendant West Coast Trailways,' it had all been without success.

Section 583 of the Code of Civil Procedure provides that:

'* * * Any action * * * shall be dismissed by the court in which the same shall have been commenced * * * unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended and except where it be shown that the defendant has been absent from the State or concealed therein and his whereabouts unknown to plaintiff and not discoverable * * * upon due diligence, in which event said period of absence or concealment shall not be a part of said five-year period.'

The statute is mandatory where applicable. Anderson v. Superior Court, 187 Cal. 95, 97, 200 P. 963. Its purpose is to prevent avoidable delay for too long a period and it is not designed arbitrarily to close the proceedings at all events in five years since it permits the parties to extend the period without limitation by written stipulation. Christian v. Superior Court, 9 Cal.2d 526, 533, 71 P.2d 205, 112 A.L.R. 1153. It is settled case law that in applying the statute, the time during which, for all practical...