Elliano v. Assurance Co. of America

• Decision Date: 07 February 1975
• Citation: 119 Cal.Rptr. 653,45 Cal.App.3d 170
• Parties: George H. ELLIANO, Plaintiff, Appellant and Cross-Respondent, v. ASSURANCE COMPANY OF AMERICA, Defendant, Cross-Appellant and Respondent. Civ. 43845.
• Court: California Court of Appeals Court of Appeals

Page 653

119 Cal.Rptr. 653

45 Cal.App.3d 170

George H. ELLIANO, Plaintiff, Appellant and Cross-Respondent, v. ASSURANCE COMPANY OF AMERICA, Defendant, Cross-Appellant and Respondent.

Civ. 43845.

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

Feb. 7, 1975.

Rehearing Denied Feb. 26, 1975.

Hearing Denied April 2, 1975.

Miller, Bronn, Brummett & Porter, and John D. Miller, Long Beach, for plaintiff, appellant and cross-respondent.

Long & Levit, and Richard B. Wolf, Los Angeles, for defendant, cross-appellant and respondent.

COLE, ^* Associate Justice.

Plaintiff George Elliano's home, insured against fire perils by the defendant Assurance Company of America, was totally destroyed by fire on October 9, 1958. After a somewhat extended period of unsuccessful negotiations to settle the amount of the loss, Elliano filed suit on May 11, 1961. Judgment went against him, only to be reversed on appeal (Elliano v. Assurance Company of America (1970) 3 Cal.App.3d 446, 83 Cal.Rptr. 509). The remittitur was filed in the trial court following the decision on that appeal on March 16, 1970.

On March 13, 1973, Elliano filed a notice of motion set for hearing on March 15, 1973, to specially set the case for trial on March 15, 1973, that assertedly being the last day on which the case could be brought to trial under the three year provision of the Code Civil Procedure, section 583 (present subd. (c)). ¹ An order shortening time was secured.

The motion was heard on March 15, 1973, and trial was ordered to commence that day. That afternoon trial began. The full proceedings of the trial on March 15, 1973 are set forth in the margin. ² Trial was by the court. It resulted in a judgment for plaintiff Elliano. He appeals, contending in essence that he was not awarded enough money. The insurance company cross-appeals, complaining about the order of the trial court setting the case for trial forthwith on March 15, 1973. We consider first the cross-appeal.

The Case Was Properly Set For Trial

When, on March 15, 1973, the court ordered that the second trial proceed that same day, the insurance company refused to waive notice of trial. The court stated that it regarded the order shortening time for the hearing of Elliano's motion to specially set the case for trial as also implying 'shortening (notice of) the time for trial of this lawsuit'.

The record does not indicate that any notice at all was actually served on the insurance company. Trial started about two hours after the court ordered the matter to be specially set. The insurance company's first argument is that notice of trial may not legally be shortened to two hours, inasmuch as Code of Civil Procedure, section 594, subdivision 1, requires that five days' notice be given.

A flaw in this argument is that the defendant insurance company, having actual knowledge of the trial, although not legal notice (Bird v. McGuire (1963) 216 Cal.App.2d 702, 713, 31 Cal.Rptr. 386), appeared at the abbreviated trial proceedings which were had on March 15, 1973. Section 594, subdivision 1, applies, by its very terms, only when the court proceeds in the absence of the party complaining about notice. (Bird, at p. 714, 31 Cal.Rptr. 386; Sheldon v. Landwehr (1911) 159 Cal. 778, 782, 116 P. 44.) It is in this context that Bird and Simon v. Tomasini (1950) 97 Cal.App.2d 115, 123, 217 P.2d 488, state that notice is jurisdictional, and it is likewise in the context of an absent defendant that Cahill v. Verdier (1921) 54 Cal.App. 465, 466, 202 P. 154, held that an order purporting to shorten time for the notice of trial was of no effect.

It is true that defense counsel stated that he did not intend to waive notice by appearing. Nevertheless, he did appear, and the statute is simply inapplicable. The short notice might entitle the insurance company to a continuance (and it received one after the trial formally commenced), but not to anything more. (Sheldon v. Landwehr, Supra.)

The next argument presented on the cross-appeal is that two hours is an unreasonably short time between a hearing on a motion to specially set a case for trial, and the commencement of the trial itself. Indeed it is, if by such extremely short warning of trial a party is precluded from putting on his case or presenting a defense. But that is Not what happened here. In arguing for the advanced trial setting, Elliano's counsel stressed that he would not object to a continuance once the trial had been commenced. That Is what happened, the full trial, according to the findings and judgment, not taking place until June 12, 1973. (No explanation appears in the record for the continuance from May 1, 1973, the date to which the trial was originally continued--fn. 2, Supra,--to June 12, 1973.)

The action of a trial court in ruling on a plaintiff's motion for an early trial setting is tantamount to that upon a motion to dismiss an action for failure to prosecute under the 'two year' provision of section 583, subdivision (a) of the Code of Civil Procedure. (General Ins. Co. v. Superior Court (1966) 245 Cal.App.2d 366, 370, 53 Cal.Rptr. 777.) That is, the question is one of the discretion of the court, to be disturbed only in cases of manifest abuse. (Weeks v. Roberts (1968) 68 Cal.2d 802, 806, 69 Cal.Rptr. 305, 442 P.2d 361; General Ins. Co., 245 Cal.App.2d at p. 370, 53 Cal.Rptr. 777; Beswick v. Palo Verde Hosp. Ass'n (1961) 188 Cal.App.2d 254, 260, 10 Cal.Rptr. 314.) In this light, the insurance company's reliance on cases in which the trial court refused to order the early trial of a matter and was affirmed is not Apropos. (General Ins. Co., Supra; Stuart v. Hollywood Turf Club (1956) 146 Cal.App.2d 261, 303 P.2d 897; Legg v. United Benefit Life Ins. Co. (1955) 136 Cal.App.2d 894, 289 P.2d 553, disapproved on other grounds in Crown Coach Corp. v. Superior Court (1972) 8 Cal.3d 540, 547, 105 Cal.Rptr. 339, 503 P.2d 1374.)

The insurance company points out that in Weeks v. Roberts, Supra,68 Cal.2d at page 808, 69 Cal.Rptr. at page 309, 442 P.2d at page 365, the court cited these three cases and stated that they 'may continue to control setting matters encompassing pretrial and trial or periods of less than 28 days'. That language, however, does not mean that allowing a shorter time, or even practically no time at all, between the granting of a motion for early trial and the start of the trial is automatically erroneous. As is discussed next here, all of the circumstances must be looked at. Where the trial court has examined the history of the case, and makes provision to protect a defendant by an appropriate continuance or other device, and having done so determines that a courtroom is available and that a trial should proceed, nothing more is required. '. . . But the power to dismiss should be used 'in view of the facts of the entire situation,' taking into account any unusual circumstances, and acting to promote substantial justice. (E.g., Daley v. County of Butte, 227 Cal.App.2d 380, 394, 38 Cal.Rptr. 693; Ordway v. Arata, 150 Cal.App.2d 71, 75--79, 309 P.2d 919; Jepsen v. Sherry, 99 Cal.App.2d 119, 120--121, 220 P.2d 819 (822).)' (Weeks v. Roberts, Supra, 68 Cal.2d 802, at p. 806, 69 Cal.Rptr. 305, at p. 307, 442 P.2d 361, at p. 363, quoting with approval from Vecki v. Sorensen (1959) 171 Cal.App.2d 390, 393, 340 P.2d 1020.) It is particularly appropriate that this case be tried since defendant concedes that plaintiff Is entitled to some recovery, and only disputes the amount.

Finally, the insurance company urges that the trial court looked only to the single factor of the imminent expiration of the three year provision of Code of Civil Procedure, section 583, subdivision (c), and did not consider other criteria. It is clear that the entire factual record must be considered (General Ins. Co. v. Superior Court, Supra, 245 Cal.App.2d 366, 53 Cal.Rptr. 777; Grafft v. Merrill Lynch, etc. (1969) 273 Cal.App.2d 379, 380--381, 78 Cal.Rptr. 42). The insurance company argues that the court focused exclusively on the fact that denial of the motion would prevent the case from being tried on the merits. That is simply not so. The court expressly stated that '(T) here are prejudices on both sides'. It said that it was bothered by delay in filing an at issue memorandum, but that it preferred to try the case on its merits rather than rely on a technicality and dismiss the suit. It heard Elliano's present counsel urge that some delay was due to the fact that former counsel was a member of the State Legislature and then was appointed to be a supervisor, without adequate time to devote to the case. The trial court also stated that it had read the documents supporting and opposing the motion to set. These included opposing declarations outlining the history of the case, as well as points and authorities.

We find no basis for reversal in the trial setting facts here involved. The judgment will be affirmed insofar as the cross-appeal is concerned.

Facts

The trial court found that the fire, in addition to destroying the structures on the insured premises, destroyed personal property and rendered the structures untenantable. Plaintiff incurred necessary and reasonable increased expenses of $2,250.00 over a period of two and one-half years, which was found to be the time required with due diligence and dispatch to repair or replace the property destroyed. Additionally, plaintiff incurred an expense of $125.00 for debris removal. The court further found that the actual cash value and fair market value of the dwlling and appurtenant structures, immediately before the fire, was $3,000.00, and that the destroyed personal property had a value of $2,486.00. Plaintiff was awarded judgment for $7,861.00, this being the total of these four sums. Finally, the court found that, on or before May 10, 1960, defendant offered in writing to pay Elliano $14,054.50 under the insurance policy on account of the loss sustained by him. Elliano did not...