Crown Coach Corp. v. Superior Court

• Decision Date: 22 December 1972
• Citation: 105 Cal.Rptr. 339,503 P.2d 1347,8 Cal.3d 540
• Court: California Supreme Court
• Parties: , 503 P.2d 1347 CROWN COACH CORPORATION, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Hollis McKinley GARRETT, Real Party in Interest. L.A. 29988. In Bank

Page 339

105 Cal.Rptr. 339

8 Cal.3d 540, 503 P.2d 1347

CROWN COACH CORPORATION, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Hollis McKinley GARRETT, Real Party in Interest.

L.A. 29988.

Supreme Court of California,

In Bank.

Dec. 22, 1972.

Rehearing Denied Jan. 24, 1973.

Harold Q. Longenecker and Ellis J. Horvitz, Los Angeles, for petitioner.

No appearance for respondent.

Pollock, Pollock, Fay & Baum, Los Angeles, Brinton N. Bowles, Visalia, and Edward I. Pollock, Los Angeles, for real party in interest.

SULLIVAN, Justice.

In this proceeding, petitioner Crown Coach Corporation seeks a writ of prohibition to restrain respondent superior court from taking further proceedings in, or a writ of mandate to compel said court to dismiss, the civil action hereafter described because after a reversal of a judgment entered therein it was not brought to trial within three years after the filing of the remittitur in the trial court. (Code Civ.Proc., § 583, subd. (b).) ¹

The facts in brief are these. On February 23, 1965, real party in interest Hollis McKinley Garrett (hereafter plaintiff) commenced against the Board of Education of the City of Los Angeles, et al., the underlying action for damages for personal injuries. On November 10, 1965, plaintiff filed a first amended complaint naming Crown Coach Corporation as a defendant. Crown Coach Corporation (hereafter defendant) demurred on the ground that the action was barred by the statute of limitations. On February 1, 1966, the demurrer was sustained with leave to amend. On March 1, 1966, plaintiff filed a second amended and supplemental complaint. Defendant's demurrer thereto was sustained without leave to amend on March 16, 1966, and an order of dismissal was entered on March 17, 1966. Plaintiff appealed and, on February 29, 1968, the Court of Appeal reversed the order of dismissal. (Garrett v. Crown Coach Corp. (1968) 259 Cal.App.2d 647, 66 Cal.Rptr. 590.)

On April 30, 1968, the remittitur was filed in respondent superior court. On June 26, 1970, plaintiff filed an at-issue memorandum; on October 22, 1971, respondent court on its own motion served and filed a notice of intention to dismiss action on court's motion under section 583. On November 17, 1971, plaintiff filed opposition to the motion and on the following day a notice of motion for early trial. On November 23, 1971, respondent superior court declined to dismiss the action. ² Defendant opposed plaintiff's early trial motion, which was granted on November 29, 1971; trial was set for March 6, 1972. On November 30, 1971, defendant filed a motion for dismissal under section 583, subdivision (b), which was again denied. Defendant thereupon filed the instant petition. We issued an alternative writ of prohibition.

'Either a writ of mandate to compel dismissal or a writ of prohibition to restrain the trial is a proper remedy to enforce the trial court's duty to dismiss pursuant to section 583, subdivision (b).' (McDonough Power Equipment Co. v. Superior Court, Cal., 105 Cal.Rptr. 330, 503 P.2d 1338.)

The positions of the parties may be summarized thusly. Defendant (petitioner herein) contends that the undisputed facts make the three-year provision of the statute applicable and that dismissal is mandatory. Plaintiff (real party in interest herein) contends (1) that the Legislature did not intend that a litigant should have less than a full five years to bring an action to trial; (2) that the three-year provision of the section has no application where there has been no remand for a new trial; and (3) that in any event the section is not applicable because it was impossible and futile to bring the action to trial within in the specified period.

In McDonough Power Equipment Co. v. Superior Court, Supra, 105 Cal.Rptr., p. 334, 503 P.2d p. 1342, we held that where, as in the instant case, a judgment of dismissal entered upon an order sustaining a demurrer without leave to amend has been reversed, the action must be brought to trial within three years from the filing of the remittitur in the trial court. As we there explained, the determination of the issues of law raised by the demurrer constitutes a trial within the meaning of section 583 and the three-year provision of the section, rather than the five-year provision, is applicable. In reaching such conclusions we rejected as without merit contentions similar to those made herein that the five-year provision was applicable. McDonough is controlling here and compels the conclusion that the trial court was under a duty to dismiss the action, unless, as plaintiff now claims, it would have been impossible or futile to bring the action to trial.

We therefore turn to plaintiff's final contention. As stated earlier, the remittitur was filed in the trial court on April 30, 1968, and the at-issue memorandum was filed by plaintiff on June 26, 1970, approximately two years and two months later. Plaintiff's argument runs as follows: that at the time he filed the at-issue memorandum there were ten months and four days remaining before the expiration of the three-year period; ³ that it must be presumed that the trial court, in denying a dismissal, believed that a motion to advance for trial would have been futile; and that the implied exceptions of futility and impossibility apply so as to prevent the running of the statutory period.

The record before us fails to disclose any statement made by plaintiff before the trial court expressly asserting that he was relying upon the implied exceptions of futility or impossibility as a bar to the running of the three-year provision of section 583. On November 17, 1971, when plaintiff resisted the court's motion to dismiss, the three-year period had already expired more than six months before, on April 30, 1971. The trial court itself had triggered the procedural events subsequent to the at-issue memorandum when on October 27, 1971, Six months after the expiration of the three-year period, on its own motion, it gave notice of its intention to dismiss the action.

A declaration by plaintiff's counsel in opposition to the trial court's intended motion to dismiss the action stated, 'At and since the time the At-Issue Memorandum was filed by Plaintiff on June 26, 1970, Plaintiff has been ready, willing and able to proceed to trial. . . . Due to Court congestion, (the) Clerk has not sent to plaintiff's counsel, a Notice of Eligibility (sic) to File Certificate of Readiness. Had said notice been sent, plaintiff's counsel would have immediately filed a Certificate of Readiness with said Clerk.' In the accompanying memorandum of points and authorities, plaintiff therefore took the position (for which no authority was cited) that the three-year provision 'applies only to those cases wherein the five-year period has elapsed . . . and permits an Additional three-year period to be added to the five-year period . . ..' (Original italics.)

Resting on these premises, plaintiff claimed the five-year period had not expired because in computing it, 'the time between the date of the first filing of the demurrer on December 23, 1965, and the date the Remittitur of the Court of Appeal was filed with the Superior Court on April 30, 1968, must be excluded.' Obviously this argument had a different emphasis from the one plaintiff now advances that 'by reason of the congestion of the court it would have been useless for plaintiff to attempt to obtain an accelerated trial date.'

In other words, before the trial court plaintiff contended that the five-year period applied and that such period had not expired because the time consumed on appeal had to be excluded in computing the five years. On the other hand, before this court plaintiff now contends that even if the three-year period is applicable, that period also has not expired because it would have been impossible and futile for plaintiff to bring the action to trial during the Three years due to the congestion of the court. Whereas in the trial court plaintiff asserted 'impossibility' due to a condition existing in the appellate court, namely the pendency of the appeal, he now asserts 'impossibility' due to a condition allegedly existing in the trial court, namely the congested condition of the trial calendar.

Nevertheless, despite this change of position, we are inclined to permit plaintiff to raise the point since, in fairness to him, it is obvious that essentially he claims that he should be excused from complying with the three-year provision because it would have been useless for him to have done so.

We are therefore presented with two questions. First, are the implied exceptions of impossibility and futility applicable to the three-year provision of section 583? Second, if they are, do they extend the three-year period in the instant case? We conclude that the first question should be answered in the affirmative and the second in the negative.

The dismissal statutes, like statutes of limitation, 'promote the trial of cases before evidence is lost, destroyed, or the memory of witnesses becomes dimmed. The statutes also protect defendants from being subjected to the annoyance of an unmeritorious action remaining undecided for an indefinite period of time.' (General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 91, 52 Cal.Rptr. 460, 462, 416 P.2d 492, 494.) Thus in applying the mandatory five-year provision of section 583 we have said that '(u)nless an action is brought to trial within five years after it has been filed, except where the parties stipulate in writing that the time may be extended or in certain cases where the defendant is absent from the state, the action must be dismissed upon motion of the defendant. (Citations.)' (Tunis v. Superior Court (1963) 59 Cal.2d 465, 466, 30 Cal.Rptr. 135, 136, 380 P.2d 823, 824; see Pacific Greyhound Lines v. Superior Court (1946) 28 Cal.2d 61, 63, 168 P.2d 665; Christin v. Superior Court (1937) 9 Cal.2d...