Fannin Corp. v. Superior Court

• Court: California Court of Appeals
• Writing for the Court: MOLINARI
• Citation: Fannin Corp. v. Superior Court, 111 Cal.Rptr. 920, 36 Cal.App.3d 745 (Cal. App. 1974)
• Decision Date: 17 January 1974
• Parties: FANNIN CORPORATION, a corporation, and Forrest Homes, a corporation, Petitioners, v. SUPERIOR COURT OF the State of California, COUNTY OF SANTA CLARA, Respondent; Horace G. JONES, Real Party in Interest. Civ. 33866.

Page 920

111 Cal.Rptr. 920

36 Cal.App.3d 745

FANNIN CORPORATION, a corporation, and Forrest Homes, a corporation, Petitioners, v. SUPERIOR COURT OF the State of California, COUNTY OF SANTA CLARA, Respondent Horace G. JONES, Real Party in Interest.

Civ. 33866.

Court of Appeal, First District, Division 1, California.

Jan. 17, 1974.

Rehearing Denied Feb. 15, 1974.

Hearing Denied March 13, 1974.

Paul M. Kouns, San Jose, Joseph H. Moless, Jr., Moless & Chavez, San Jose, for petitioners.

George Porter Tobin, Los Gatos, for real party in interest.

MOLINARI, Presiding Justice.

In this case we issued an alternative writ of prohibition directing respondent court to show cause why it should not be permanently restrained from taking any further action or proceeding in an action brought by real party against petitioners.

The subject action was filed on March 18, 1965. Petitioners demurred to the complaint on May 17, 1965, and answered the complaint on July 9, 1965, after the demurrer was overruled. The complaint was amended on May 6, 1969, pursuant to stipulation of the parties. On January 9, 1970, real party filed an at-issue memorandum, certificate of readiness, and a notice of motion to advance the case for trial. On January 16, 1970, petitioners moved to dismiss the action for lack of prosecution pursuant to subdivision (a) of Code of Civil Procedure section 583. ¹ The motion was granted on January 28, 1970.

Real party moved to set aside the order granting the motion to dismiss. The motion was granted on February 24, 1970, simultaneously with the granting of a new motion to dismiss for lack of prosecution. (§ 583, subd. (a).) On March 12, 1970, real party appealed from the order granting the motion to dismiss and on the same day proceeded to trial against codefendant Roberts. After the introduction of certain documents into evidence and the taking of some testimony, real party requested and was granted a continuance of the trial. Petitioners were not present at that trial.

The order granting petitioner's motion to dismiss was reversed with directions to the trial court that it exercise its full discretion in the light of recent cases. Remittitur issued on June 12, 1972. On June 15, 1972, real party filed an at-issue memorandum and certificate of readiness. On June 29, 1973, real party moved to restore the case to the calendar and to have it set for trial.

Petitioners, on July 5, 1973, moved to dismiss the action pursuant to subdivision (b), of section 583, on the ground that the matter had not been brought to trial within five years after its commencement. On July 29, 1973, petitioners' motion was denied and real party's motion to restore the case to the calendar was granted. On August 15, 1973, the action was set for trial for September 26, 1973, and concurrently therewith an order was entered denying petitioners' motion to dismiss. The instant proceedings then ensued.

Subdivision (b) of section 583 provides as follows: '(b) Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended.' Under this code section dismissal is mandatory if the period therein provided has elapsed. (Crown Coach Corp. v. Superior Court, 8 Cal.3d 540, 546, 105 Cal.Rptr. 339, 503 P.2d 1347; Tunis v. Superior Court, 59 Cal.2d 465, 466, 30 Cal.Rptr. 135, 380 P.2d 823.)

The appellate courts have, however, established decisionally certain implied exceptions to the mandatory dismissal requirement of the statute where it would be impossible, impracticable or futile due to causes beyond a party's control to bring an action to trial during the five-year period. (Crown Coach Corp. v. Superior Court, supra, 8 Cal.3d 540, 546--547, 105 Cal.Rptr. 339, 503 P.2d 1347, and cases there cited.) Whether it is impossible, impracticable or futile to proceed with the trial of a civil action within the meaning of the court-established implied exceptions must be determined in the light of the circumstances in each case. (Crown Coach Corp. v. Superior Court supra, at p. 547, 105 Cal.Rptr. 339, 503 P.2d 1347; Woley v. Turkus, 51 Cal.2d 402, 407, 334 P.2d 12.) However, excuses for noncompliance will not be accepted unless they may fairly be said to make a trial impracticable. (Crown Coach Corp. v. Superior Court, supra, at p. 548, 105 Cal.Rptr. 339, 503 P.2d 1347.) Accordingly, the time consumed by the delay caused by ordinary incidents by proceedings like disposition of demurrer, amendment of pleadings, and the normal time of waiting for a place on the court's calendar or securing a jury trial are not within the contemplation of the implied exceptions for exclusion from a computation of the applicable period. (Crown Coach Corp. v. Superior Court, supra, at p. 548, 105 Cal.Rptr. 339, 503 P.2d 1347; O'Donnell v. City and County of S.F., 147 Cal.App.2d 63, 65--66, 304 P.2d 852; see Wright v. Groom Trucking Co., 206 Cal.App.2d 485, 497, 24 Cal.Rptr. 80; Beswick v. Palo Verde Hospital Assn., 188 Cal.App.2d 254, 257, 10 Cal.Rptr. 314; Continental Pac. Lines v. Superior Court, 142 Cal.App.2d 744, 750, 299 P.2d 417.) '(T)he duty rests upon a plaintiff at every stage of the proceedings to use due diligence to expedite his case to a final determination.' (Raggio v. Southern Pacific Co., 181 Cal. 472, 475, 185 P. 171, 173; Crown Coach Corp. v. Superior Court, supra, at p. 548, 105 Cal.Rptr. 339, 503 P.2d 1347.)

In this case the complaint was filed on March 18, 1965. A total of eight (8) years, three (3) months and seventeen (17) days had elapsed at the time petitioner filed the motion to dismiss on July 5, 1973. From this period, under one of the implied exceptions to the five-year period, must be excluded the time elapsing from real party's notice of appeal filed on March 12, 1970, to the issuance of the remittitur on June 12, 1972. (Guy F. Atkinson Co. v. State of California, 17 Cal.App.3d 1065, 1068, 95 Cal.Rptr. 543; Fay v. Mundy, 246 Cal.App.2d 231, 243, 54 Cal.Rptr. 591; Wilson v. Barry, 119 Cal.App.2d 621, 624, 259 P.2d 991.) However, the time consumed in disposing of the demurrer and the making of the amendments to the pleadings is not excluded. (Crown Coach Corp. v. Superior Court, supra, 8 Cal.3d 540, 548, 105 Cal.Rptr. 339, 503 P.2d 1347; Kowalski v. Cohen, 252 Cal.App.2d 977, 979--980, 60 Cal.Rptr. 874; Governale v. Bethlehem Pacific Coast Steel Corp., 235 Cal.App.2d 837, 841, 45 Cal.Rptr. 707; Bella Vista Dev. Co. v. Superior Court, 223 Cal.App.2d 603, 608--609, 36 Cal.Rptr. 106; Breakstone v. Giannini, 70 Cal.App.2d 224, 228--230, 160 P.2d 887.) Accordingly, eliminating the time properly excluded, there remained a period of six (6) years, one (1) month and six (6) days elapsing from the time of the filing of the complaint to the time of the instant motion to dismiss.

Real party contends that the action was brought to trial within five years after the filing of the complaint. He asserts that the trial commenced on March 12, 1970, when he proceeded to trial against codefendant Roberts. On that date only six (6) days remained within the statutory period.

This contention is without merit. The action was never brought to trial against petitioners. The trial which commenced on March 12, 1970, against Roberts took place After petitioners had obtained an order dismissing the action as to them. The effect of the written order of dismissal was that of a final judgment as a result of which petitioners were no longer parties to the action. Real party treated the order as a final judgment when he appealed from it and ultimately secured its reversal.

Section 581d specifically provides that a written order of dismissal when signed by the court and filed in the action 'shall constitute judgments and be effective for all purposes, . . .'

The effect of the order of dismissal was to terminate the action as to petitioners who at that point became strangers to the action. (Coburg Oil Co. v. Russell, 100 Cal.App.2d 200, 204 223 P.2d 305; Lori, Ltd. v. Wolfe, 85 Cal.App.2d 54, 61, 192 P.2d 112.) Accordingly, a trial held without petitioners as parties could in no way affect their rights. Moreover, since real party had taken an appeal from the order of dismissal the trial could not have proceeded against petitioners while the appeal was pending.

Real party also claims that it was impossible, impracticable and futile due to causes beyond his control to bring the action to trial during the five-year period. This claim is also without merit. We observe that when real party filed the notice of appeal on March 12, 1970, only six days remained within the five-year period. Upon the filing of the remittitur on June 13, 1972, by virtue of the exclusion in the computation of the time during which the appeal was pending, real party was in the same position with respect to the five-year statutory period that he was when he filed the notice of appeal, i.e., he had six days, or until June 19, 1972, to bring the action to trial. On June 15, 1972, he filed an at-issue memorandum and certificate of readiness, leaving only four days within which to bring the case to trial. Real party made no motion to advance the case for trial but waited until June 29, 1973, over a year after the limitation period had run, before he moved to restore the case to the active calendar, as provided by the Santa Clara County Superior Court Rules, ² and to have it set for trial.

Real party alleges that he had 'from time to time made inquiry of the calendar secretary's office as to when the cause would come up for trial setting conference and be set for trial and was repeatedly advised that the cause was on the civil active...