Contract Engineers, Inc. v. Welborn
| Decision Date | 01 February 1968 |
| Citation | 65 Cal.Rptr. 903,258 Cal.App.2d 553 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CONTRACT ENGINEERS, INC., Plaintiff and Appellant, v. Lewis W. WELBORN, et al., Defendants and Respondents. Civ. 30834. |
Alfred D. Freis, Los Angeles, for plaintiff and appellant.
Crider, Tilson & Ruppe , Edward A. DeBuys, Los Angeles, and Abe Mutchnik for defendant and respondent Densmore Engineering Co., Inc.
Robert M. L. Baker and Marvin M. Chesebro, Los Angeles, for defendant and respondent Utility Trailer Manufacturing Co., Inc.
Schell & Delamer and Douglas W. Richardson, Los Angeles, for defendant and respondent The Paul Munroe Co., Inc.
David H. Caplow and Stanley Sapiro, Los Angeles, for defendants Welborn and Structural Systems, Inc.
This appeal is a companion appeal to that considered in Contract Engineers, Inc. v. California-Doran Heat Treating Co., Cal.App., 65 Cal.Rptr. 776, in which we file our opinion concurrently herewith. Both arise out of the same action in the trial court, but the two appeals involve different defendants and different issues. Consequently, although we permitted a partial consolidation of briefs and of records, we decide them by separate opinions.
The action was filed on March 21, 1962, alleging damage to property of the plaintiff occurring on June 11, 1959, allegedly due to the fault of the defendants. For reasons not appearing from the record, the original complaint was never served on anyone. 1 On October 11, 1962, plaintiff filed its first amended complaint. This pleading was served on the defendants herein involved 2 on the following dates: On defendants Welborn and Structural Systems, Inc., (hereinafter referred to collectively as 'the Welborns') on March 20, 1964; 3 on defendant Paul Munroe Company, Inc. (hereinafter referred to as 'Paul Munroe'), on September 20, 1963; on defendant Densmore Engineering Co., Inc. (hereinafter referred to as 'Densmore') some time prior to November 1, 1963; and on defendant Utility Trailer Manufacturing Co., Inc. (hereinafter referred to as 'Utility') some time prior to December 10, 1962. 4
Responsive pleadings were thereafter filed, as follows: On June 17, 1964, the Welborns filed a special demurrer, which was sustained on July 3, 1964, with leave to amend; on October 25, 1963, defendant Paul Monroe filed its separate answer; on November 1, 1963, defendant Densmore answered; and on December 10, 1962, defendant Utility answered and cross-complained against California-Doran (not theretofore a named party to the action) 5 and against another defendant (California Testing Laboratories) not involved in this appeal.
Thereafter, on November 13, 1964, plaintiff filed a second amended complaint which, as is discussed in our opinion in the California-Doran case, was served only on the Welborns. The Welborns demurred to that pleading on December 15, 1964. On December 22, 1964, that demurrer was sustained with leave to amend.
On April 21, 1965, plaintiff filed its third amended complaint, which was served on all of the defendants herein involved. Responsive pleadings followed as follows: On September 17, 1965, by the Welborns; on April 30, 1965, by Paul Monroe; on April 30, 1965, by Densmore; and on October 22, 1965, by Utility.
On March 31, 1965, Paul Monroe filed a motion to dismiss the proceeding against it, on the ground of undue delay in prosecution (Code Civ.Proc. § 583); on April 2, 1965, Densmore filed a similar motion. Both motions were heard, together with a motion by California-Doran, on May 6, 1965. On May 10, 1965, the court filed its order denying the Paul Monroe and Densmore motions, 'without prejudice to renewal after October 1, 1965, if no Memorandum to Set and Certificate of Readiness signed by counsel for Plaintiffs has been filed before that date.' The California-Doran motion was also denied. In its memorandum, filed concurrently with the minute order of May 10, 1965, the trial court said:
By October 1, 1965, no such memorandum or certificate was on file and, on that date, Paul Munroe filed its second notice of motion to dismiss under section 583. Densmore followed suit on October 6, 1965. On November 9, 1965, the motions of Paul Monroe and Densmore were granted, followed by a formal judgment of dismissal on that date. On December 17, 1965, the Welborns filed their motion to dismiss under section 583; and on the same date Utility noticed for hearing a similar motion. On January 6, 1966, both motions were granted, and a formal judgment of dismissal was entered on the same date. From these final judgments of dismisal, plaintiff has appealed. For the reasons set forth below, we reverse the judgments.
While the above proceedings between plaintiff and the several defendants were going on, those defendants were carrying on, desultorily, cross-actions among themselves, as follows:
Utility filed, on December 10, 1962, a cross-complaint against California-Doran and California Testing. California-Doran answered on January 3, 1963, and California Testing answered on January 8, 1963. Nothing happened thereafter, so far as this record discloses until, on July 15, 1965, California-Doran moved to inspect certain writings--a motion that was granted on August 2, 1965. On October 4, 1965, California-Doran moved to dismiss the cross-complaint under section 583, and that motion was granted on November 9, 1965. So far as the record discloses, the cross-complaint has been at issue between Utility and California Testing ever since January 8, 1963.
Paul Monroe filed, on October 25, 1963, a cross-complaint against plaintiff, the Welborns, Densmore, Utility and other parties. So far as the record discloses, that cross-complaint was still pending when the judgments herein appealed from were granted and entered, but it was not yet at issue as against any cross-defendant therein named.
The Welborns filed, on September 17, 1965, a cross-complaint naming, as cross-defendant, the plaintiff, Paul Monroe, Densmore and Utility. Densmore answered on September 24, 1965. On October 22, 1965, Utility demurred and on November 27, 1965, Paul Monroe demurred. Both demurrers were heard and decided on December 7, 1965. By stipulation, the demurrers were sustained as to the second and third causes of action, with leave to amend. On December 29, 1965, the Welborns filed their election to stand on the first cause of action and not to amend as to the other two causes of action. Plaintiff answered this cross-complaint on January 10, 1966.
Since the trial court had found, on May 10, 1965, that there were no inexcusable delays attributable to plaintiff by that date, we are herein concerned only with delays, after that date and attributable to plaintiff. This, of course, is not to say that either the trial court, or we, should be indifferent to the earlier delays as part of an over-all picture, but merely that Some delay, chargeable to plaintiff, after May 10, 1965, must be found.
Clearly, on October 1, 1965, plaintiff was unable to file either a memorandum for setting or a certificate of readiness. On that date, the case was not at issue as to Utility, (which did not answer the third amended complaint until October 22nd), and it had been at issue as to the Welborns only since September 17th. Furthermore, the rules of court then in force provided that a memorandum for setting could not be filed until the case was at issue 'as to all parties.' 6 But the Paul Monroe cross-complaint was not then at issue as to anyone and the Utility cross-complaint likewise was not then at issue. The same situation persisted as to the Paul Monroe cross-complaint at the time the last dismissal was entered and it persisted as to the Utility cross-complaint until at least December 29, 1965 7--only a week before the last dismissal. The delays with reference to these cross-complaints cannot, in any manner shown by this record, be held to have been attributable to plaintiff, since they resulted from either failure of other parties to plead to a pleading initiated by another party or from law and motion proceedings between other parties.
It is true that, even after May 10, 1965, plaintiff was less than aggressive in initiating discovery proceedings; 8 but while this might have justified the trial court in terminating discovery proceedings, once the case was at issue on all pleadings, it did not justify a total dismissal.
So far as we can see, after May 10, 1965, plaintiff was at fault only in not being nasty toward defendants Paul Monroe, Utility and the Welborns. Neither Utility nor the Welborns evidenced any hurry to answer the third amended complaint and neither they nor Paul Monroe were anxious to get their several cross-complaints at issue. Since we can...
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City of Los Angeles v. Gleneagle Dev. Co.
...its merits, very slight evidence will be required to justify a court in setting aside the default.' In Contract Engineers, Inc. v. Welborn (1968) 258 Cal.App.2d 553, 556, 65 Cal.Rptr. 903, the trial judge indicated, '(W)hile plaintiff has heretofore been making haste all too slowly, the rec......