Dick v. Superior Court

• Decision Date: 26 September 1986
• Citation: 230 Cal.Rptr. 297,185 Cal.App.3d 1159
• Court: California Court of Appeals Court of Appeals
• Parties: , 34 Ed. Law Rep. 848 William DICK, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, LOS ANGELES UNIFIED SCHOOL DISTRICT, Real Party in Interest. B019349.

Page 297

230 Cal.Rptr. 297

185 Cal.App.3d 1159, 34 Ed. Law Rep. 848

William DICK, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent LOS ANGELES UNIFIED SCHOOL DISTRICT, Real Party in Interest.

B019349.

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

Sept. 26, 1986.

Lewis, Marenstein & Kadar, Los Angeles, and Thomas L. Hoegh for petitioner

No appearance for respondent.

Blanck & Blanck and Herbert F. Blanck, Camarillo, for real party in interest.

WOODS, Presiding Justice.

By this proceeding, William Dick, petitioner, seeks a writ of mandate directing respondent court to vacate its order denying his motion to specially set his personal injury action for trial before expiration of the five-year period allowed for that purpose by Code of Civil Procedure section 583.310. ¹ The issue before us is whether, given the totality of relevant circumstances, respondent's denial of petitioner's motion was an abuse of discretion. We conclude that it was.

The facts are as follows:

On May 20, 1980, petitioner sustained personal injuries as a result of exposure to toxic fumigants at the 92nd Street Grammar School in Los Angeles. On March 17, 1981, a complaint was filed on petitioner's behalf against the Los Angeles Unified School District (school district), real party in interest herein. In September 1981, school district answered the complaint and, concurrently, cross-complained against Target Chemical Company (Target), Micro-Gen Equipment Corporation (Micro-Gen) and Fairfield American, Inc. (Fairfield). Subsequently, petitioner twice amended his complaint to substitute certain of these cross-defendants for the Doe defendants named in his original complaint. Additionally, some of these cross-defendants commenced actions against each other.

On July 11, 1983, petitioner filed an at-issue memorandum with the superior court, respondent herein. The case was never scheduled for a trial setting conference. ²

Petitioner, meanwhile, proceeded with discovery. On October 4, 1983, petitioner conducted depositions of two school district employees. Interrogatories were also propounded to the school district. Additionally, petitioner sought production of documents from another defendant, Target. In April 1985, petitioner also suggested that the parties to the various actions and cross-actions participate in a voluntary settlement conference.

On May 14, 1985, petitioner filed a second at-issue memorandum and requested trial preference, citing the five-year statute. A trial setting conference was scheduled for August 9, 1985. On August 9, however, it appeared that defendant, Micro-Gen, had not been given proper notice of the conference by petitioner. ³ Micro-Gen declined to waive notice. Consequently, on August 12, 1985, petitioner filed a third at-issue memorandum, again seeking trial preference.

In November 1985, petitioner entered into settlement negotiations with defendants Fairfield, Target, Micro-Gen and Van Waters & Rogers. As a result of these negotiations, a tentative agreement was reached between these parties in January 1986. According to the terms of the agreement, the various complaints and cross-complaints would all be dismissed, leaving for trial only the petitioner's original action against the school district. ⁴

Petitioner's August 9 at-issue memorandum had not resulted in the scheduling of a trial setting conference. On January 10, 1986, therefore, petitioner moved to specially set the case for trial. In the motion and supporting declaration, petitioner cited the running of the five-year statute and pointed out that there had been no response from the superior court to the August at-issue memorandum. There was no opposition to petitioner's motion by the school district. The only opposition was filed by Micro-Gen.

Petitioner's motion was heard on February 3, 1986. Counsel for the school district did not, apparently, appear to oppose the motion. Nonetheless, the motion was denied. In so ruling, the superior court cited court congestion and scheduled the trial setting conference for April 8, 1986, beyond the five-year period, and without prejudice to a defense motion to dismiss.

On February 5, 1986, petitioner timely sought reconsideration of his motion pursuant to section 1008, subdivision (a). ⁵

In his application, petitioner set forth the chronology of his attempts to set the case for trial. He also related the steps he had taken to prepare for trial. Finally, he set forth the settlement negotiations which had taken place between the parties. Petitioner estimated the trial would take five days.

The application to reconsider was heard on February 25, 1986, and denied. The superior court judge who heard the matter acknowledged petitioner's diligent efforts to move the case along. Nonetheless, the court felt it would be unfair to other litigants waiting for a trial date to advance petitioner's case.

On March 10, 1986, this petition for writ of mandate was filed. On March 11, 1986, we issued an order staying the trial of petitioner's action and notifying the parties that we were considering issuing a peremptory writ in the first instance. On June 19, 1986, we issued an alternative writ of mandate, and stayed the trial until compliance with the alternative or further order of this court.

DISCUSSION

I

The granting or denying of a motion for trial preference lies in the sound discretion of the trial court. ( § 36, subd. (d) [" ... the court may in its discretion grant a motion for preference...."].) Three Supreme Court cases have addressed the issue of the proper exercise of that discretion when the trial court is confronted by a motion for trial preference brought to avoid mandatory dismissal under the five-year statute. (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 228 Cal.Rptr. 504, 721 P.2d 590; Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 194 Cal.Rptr. 773, 669 P.2d 9; Weeks v. Roberts (1968) 68 Cal.2d 802, 69 Cal.Rptr. 305, 442 P.2d 361.)

Denial of the motion under these circumstances is, in effect, a dismissal of the action under the court's discretionary power to dismiss for delay in prosecution. ( § 583.410, subd. (a).) ⁶ Hence, the court's exercise of discretion is governed by the same factors which apply to discretionary dismissal motions. "The action of the court on such a motion [for trial preference] is tantamount to action upon a motion to dismiss for failure to prosecute within the two-year period prescribed in section 583 of the Code of Civil Procedure [now substantially re-enacted as sections 583.410 and 584.420, subd. (a)(2)(A)-(B) ]; in each instance the motion is addressed to its sound legal discretion; the motivating factors in the exercise of that discretion would be pertinent to both motions; and its decision 'will be disturbed only in cases of manifest abuse.' " (Italics omitted.) (Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d at p. 561, 194 Cal.Rptr. 773, 669 P.2d 9, quoting Beswick v. Palo Verde Hospital Assn. (1961) 188 Cal.App.2d 254, 260, 10 Cal.Rptr. 314.)

There are a myriad of factors set forth in California Rules of Court, rule 373(e), which a court is required to consider in ruling on a motion for discretionary dismissal. ⁷ While all those factors are relevant to determination of a motion for trial preference, the Supreme Court has focused on four factors in particular: (1) the plaintiff's diligence or lack thereof; (2) prejudice to the defendant of an accelerated trial date; (3) the condition of the court's calendar; and (4) the likelihood of eventual mandatory dismissal if the early trial date is denied. (Salas v. Sears, Roebuck & Co., supra, 42 Cal.3d at p. 349, 228 Cal.Rptr. 504, 721 P.2d 590; Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d at p. 561, 69 Cal.Rptr. 305, 442 P.2d 361.)

We now discuss the applicability of each of these factors to the facts of the case at bar.

II

A

In the two Supreme Court decisions affirming denial of plaintiffs' motions for trial preference and dismissal of their actions, the plaintiffs' lack of diligence was the crucial factor. (Salas v. Sears, Roebuck & Co., supra, 42 Cal.3d at p. 349, 228 Cal.Rptr. 504, 721 P.2d 590 ["By (plaintiffs') utter lack of diligence they forfeited their right to preferential setting for trial and were properly subject to dismissal."]; Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d at p. 562, 69 Cal.Rptr. 305, 442 P.2d 361 ["the trial court had good cause to dismiss on its own motion. The appalling absence of diligence on Wilson's part is apparent."].)

Where, however, plaintiff has diligently prosecuted his action up to the point of the motion for trial preference, denial of that motion may constitute an abuse of discretion. In Dockery v. Hyatt (1985) 169 Cal.App.3d 830, 215 Cal.Rptr. 488, the plaintiff's action was dismissed under the discretionary dismissal statute (then numbered § 583, subd. (a)) solely for the failure of his attorney to appear at the trial setting conference. This court reversed, noting that the trial court had neglected to consider the other relevant factors listed in rule 373(e) of the California Rules of Court. We said: "The factor of plaintiff's counsel's diligence in pursuing discovery or other pretrial proceedings was particularly pertinent here. Plaintiff has contended, without dispute by defendant, that the case had been prosecuted diligently up to the time of the missed appearance for the trial setting conference. Moreover, there has been no showing that defendant was prejudiced by the delay." (Id., at p. 833, 215 Cal.Rptr. 488.)

Likewise, in the present case, there is no real dispute that petitioner acted diligently in prosecuting his action up to the point of the motion for trial preference. Indeed, the court below essentially made a finding of due diligence on petitioner's part. ⁸ The trial court's only cavil was its belief that the motion for trial preference, filed only two months before...