Denham v. Superior Court

• Decision Date: 06 May 1970
• Citation: 468 P.2d 193,86 Cal.Rptr. 65,2 Cal.3d 557
• Court: California Supreme Court
• Parties: , 468 P.2d 193 James E. DENHAM, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; MARSH & KIDDER, John Marsh and Harry Kidder, Real Parties in Interest. L.A. 29704.

Page 65

86 Cal.Rptr. 65

2 Cal.3d 557, 468 P.2d 193

James E. DENHAM, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent MARSH & KIDDER, John Marsh and Harry Kidder, Real Parties in Interest.

L.A. 29704.

Supreme Court of California In Bank.

May 6, 1970.

As Modified May 27, 1970.

Robinow & Heath, Robert W. Robinow and Acret & Perrochet, Los Angeles, for petitioner.

No appearance for respondent.

Harris K. Lyle, Donald E. Werner, Van Nuys, and Edward L. Lascher, Ventura, for real parties in interest.

Edward I. Pollock and Leonard Sacks, Los Angeles, amici curiae on behalf of real parties in interest.

McCOMB, Justice.

Petitioner (hereinafter referred to as 'defendant Denham') moved in respondent court, under section 583 of the Code of Civil Procedure, for dismissal of an action not brought to trial within two years of the date of the filing thereof. Respondent court denied his motion, and he here seeks a writ of mandate to compel respondent court to dismiss the action for failure to diligently prosecute.

Facts: June 19, 1964, real parties in interest (hereinafter referred to as 'plaintiffs') filed an action against defendant Denham, the Board of Supervisors of Los Angeles County (hereinafter referred to as 'the board of supervisors'), and Glens Falls Insurance Co. (hereinafter referred to as 'Glens Falls') to collect $21,334.63 and enforce a labor and material bond after construction by plaintiffs of a certain vivarium (animal housing and testing annex). Prior thereto, a stop notice had been delivered to the board of supervisors on behalf of plaintiffs' pursuant to section 1190.1 of the Code of Civil Procedure. At the time the action was filed, plaintiffs were represented by the law firm of Lyle, Yudelson & Di Giuseppe, with James Di Giuseppe handling the matter.

By July 13, 1964, a copy of the summons and complaint had been served on each of the defendants. The board of supervisors filed an answer July 3, 1964, and extensions of time to appear were granted defendant Denham and Glens Falls at their request. August 31, 1964, a demurrer was filed on behalf of defendant Denham and Glens Falls, and the hearing thereon was set for September 8, 1964. The hearing was continued to September 22, 1964, at which time the demurrer was sustained and plaintiffs given 30 days in which to amend.

An amended complaint was filed October 22, 1964. October 30, 1964, it was stipulated that the answer filed by the board of supervisors July 3, 1964, to the original complaint would be deemed an answer also to the amended complaint. Defendant Denham and Glens Falls were granted an extension to plead to November 16, 1964, and they thereafter filed a demurrer to the first amended complaint. The demurrer was overruled November 30, 1964.

The attorneys for defendant Denham and Glens Falls contacted James Di Giuseppe, plaintiffs' attorney, to ascertain whether they should answer all three causes of action stated in the complaint, and a further continuance was agreed upon. James Di Giuseppe subsequently wrote the attorneys twice, requesting that an answer be filed. Thereafter, the attorneys asked for additional time because of a past illness. Finally, February 10, 1965, after James Di Giuseppe had again contacted the attorneys, an answer, as well as a cross-complaint seeking damages of $20,000, was filed on behalf of defendant Denham and Glens Falls. Plaintiffs filed an answer to the cross-complaint March 16, 1965, at which time a demand was made for a bill of particulars. Defendant Denham and Glens Falls answered the demand May 5, 1965, and made a similar demand on plaintiffs. Plaintiffs, after notice by defendant Denham given August 27, 1965, that if the bill of particulars was not furnished within 15 days, he would move for an order imposing sanctions, filed a bill of particulars September 10, 1965.

In the meantime, April 30, 1965, the law firm of Lyle, Yudelson & Di Giuseppe, representing plaintiffs, was dissolved. At that time, Mr. Yudelson, who had had the primary responsibility of preparing briefs and pleadings, left the firm to become a sole practitioner. Beginning May 1, 1965, the firm was known as Lyle & Di Giuseppe and consisted of Harris K. Lyle, James Di Giuseppe, and Joseph Di Giuseppe. The responsibilities formerly handled by Mr. Yudelson were assumed by Joseph Di Giuseppe.

In July 1965, the attorneys for defendant Denham and Glens Falls filed a motion for an order exonerating the stop notice release bond and releasing the security for said bond. Between July 7, 1965, and August 18, 1965, various points and authorities were filed by both sides, and August 23, 1965, the motion was granted.

On the first court date of 1966, Joseph Di Giuseppe was sworn in as a Commissioner of the Municipal Court of the Los Angeles Judicial District and thereafter had no further connection with the firm of attorneys representing plaintiffs. As a result, James Di Giuseppe was required to assume a tremendously increased work load, due to the fact that Harris K. Lyle was approximately 72 years of age, and certain physical deformities from which he had been suffering for a number of years were becoming more pronounced, thereby preventing him from handling any of the additional responsibilities resulting from the departure of Joseph Di Giuseppe.

Between August 1965 and July 1966, James Di Giuseppe had several conversations with defendants' attorneys, in which the possibility of settlement was mentioned. July 13, 1966, it appearing that a settlement would not be reached, James Di Giuseppe sent said attorneys a certificate of readiness for execution by them. They reported, however, that defendant Denham was out of town, that he would not be back for several weeks, and that they could not execute the certificate without his authorization. They also stated that they thought additional discovery by way of depositions and interrogatories would be required.

Subsequently, defendants' attorneys notified James Di Giuseppe that they wished to take the depositions of plaintiffs, and arrangements were made for the depositions to be taken September 9, 1966. At that time, however, James Di Giuseppe was engaged in a trial and requested a continuance to October 25, 1966. The depositions were then taken on the rescheduled date.

December 22, 1966, James Di Giuseppe was sworn in as a Judge of the Municipal Court of the Los Angeles Judicial District. Prior thereto, Mr. Lyle had had nothing to do with the present case and was completely unfamiliar with its background or status. At the time of James Di Giuseppe's judicial appointments, due to the large volume of business then pending in the office, it was apparently physicially impossible for Mr. Lyle to give immediate attention to this case and many others then pending.

At the time he was appointed to the bench, James Di Giuseppe was in the middle of the trial of a cause entitled, 'Dorothy Rickless, Plaintiff, v. Hubert A. Temple, et al., Defendants.' numbered 786,250 on the records of the Superior Court of Los Angeles County. Mr. Lyle was required to obtain a continuance of the trial and devote practically all of his time to familiarizing himself with the pleadings, the testimony already taken (approximately 800 pages), the depositions, and the prospective evidence to be given in the defense. As a result, it was late in February 1967 before he became aware that the present case was in his office. At that time, he inquired about the status of the memorandum to set and was orally informed by Judge Di Giuseppe and his then secretary that a proper memorandum to set had been filed.

In October 1967, Mr. Lyle had occasion to review the file personally and saw that it did not contain a copy of a memorandum to set. Realizing that Judge Di Giuseppe and his then secretary had been mistaken when they told him a memorandum to set had been filed, he immediately prepared one on behalf of plaintiffs. Earlier that month, a substitution of attorneys had been filed substituting Harry K. Lyle and Donald E. Werner as attorneys for plaintiffs. Interrogatories were propounded to defendant Denham, and his answer was filed November 20, 1967. The at-issue memorandum and certificate of readiness was then filed by plaintiffs November 28, 1967.

One year later, November 29, 1968, respondent court set a pretrial hearing for February 13, 1969. At that time, it was stipulated that the action be dismissed as to the board of supervisors, and a trial date was set for April 21, 1969, in department 1.

Around the middle of March 1969, counsel arranged for the deposition of defendant Denham to be taken April 10, 1969. April 8, 1969, defendant Denham gave notice that April 18, 1969, he would move to dismiss the action for failure to prosecute with reasonable diligence, since it had not been brought to trial more than two years after it was filed (Code Civ.Proc., § 583). April 10, 1969, Donald E. Werner filed a declaration in opposition to the motion to dismiss, with points and authorities. In the declaration, Mr. Werner merely indicated that pretrial had been held in February 1969, that a trial date of April 21, 1969, had been assigned to the case, that a deposition of plaintiff had been taken and depositions of defendant and a witness were then set, and that plaintiff was ready to proceed to trial April 21, 1969. ¹

Since April 18, 1969, was a Friday, and it was the policy of respondent court not to hear such motions on a Friday, the matter was reset to be heard April 21, 1969, which was the date set for the trial. At that time, counsel for the parties appeared in department 63, where defendant Denham's motion was heard by Commissioner Nichols acting as a temporary judge (see Cal.Const. art. VI, § 21; People v. Tijerina (1969) 1 Cal.3d 41, 48--49, 81 Cal.Rptr. 264, 459 P.2d 680). No reporter was present, and there is therefore no record of the proceedings. However, in his declarations and points and authorities...