Fay v. Mundy

• Citation: 54 Cal.Rptr. 591,246 Cal.App.2d 231
• Court: California Court of Appeals
• Decision Date: 07 November 1966
• Parties: John Patrick FAY, a minor, by his Guardian ad Litem, Betty Fay, Plaintiff and Appellant, v. Carroll Francis MUNDY et al., Defendants and Respondents. Civ. 655.

Page 591

54 Cal.Rptr. 591

246 Cal.App.2d 231

John Patrick FAY, a minor, by his Guardian ad Litem, Betty Fay, Plaintiff and Appellant, v. Carroll Francis MUNDY et al., Defendants and Respondents.

Civ. 655.

District Court of Appeal, Fifth District California.

Nov. 7, 1966.

Rehearing Denied Dec. 5, 1966.

Hearing Denied Dec. 27, 1966.

[246 Cal.App.2d 232] Kinkle, Rodiger, Graf & Dewberry, Harney, Ford & Schlottman and Robert E. Ford, Los Angeles, for appellant.

Raymond & Keon and Robert L. Raymond, Bakersfield, for respondents.

OPINION

CONLEY, Presiding Justice.

Within five years from the date he filed his action and after his counsel had overcome unusual difficulties in preparing for trial, had taken some 21 depositions, participated in a pretrial conference, and announced themselves ready immediately to try the case, John Patrick Fay, a nine-year-old minor of deficient mentality, was faced with an order dismissing his malpractice suit on the ground of lack of prosecution, pursuant to the first sentence of section 583 of the Code of Civil Procedure. While this court is mindful of the fact that the code section was enacted to help to eliminate delay in the trial of cases, we cannot escape the conclusion that, in the circumstances here presented, this order of dismissal constituted a manifest abuse of discretion.

In his opinion in Vecki v. Sorensen, 171 Cal.App.2d 390, 393, 340 P.2d 1020, 1021, Mr. Justice Tobriner also expresses our views when he says:

'We approach the case in the light of recognition of the fact that courts exist primarily to afford a forum for the settlement of litigable matters between disputing parties. Over a long and bitter history this peaceful method of adjudication has replaced other and primative, and indeed physical, means of resolution (Frank, Courts on Trial, Princeton University Press (1949), pp. 5--13.) To deny the forum upon the ground that one or the other party has sacrificed it because the procedure has itself been too slow does not appeal to a mature sense of justice. Only the most compelling reasons would support a surrender of this necessary and valued right of resolution for any such cause.'

In furthering its general objective, the code section mentions three different time periods to be considered. The first one states that in the interval between two years and five years after the filing of a complaint, a trial court, in its discretion, may dismiss an action for want of prosecution. After five years, the requirement of dismissal for lack of prosecution is said to be 'mandatory.' And a three-year period is mentioned for dismissal when there is a failure to bring a case to trial within three years after the granting of a new trial or the reversal of a case on appeal. However, this does not mean that after the expiration of the respective periods, there is a lack of jurisdiction to proceed. To some extent, reasons incorporated in the code section itself permit additional time in specified circumstances. For example, the 'mandatory' provisions relating to the five-year time limit may be by-passed through a written stipulation by counsel for the respective parties, and there are numerous implied exceptions to the time limits.

The books are full of cases in which dismissals have been ordered within the periods mentioned, and the rules, in ordinary situations, are rather stringently applied in support of such dismissals. Speaking of the discriminatory right to dismiss in the two-to-five year period, it is often reiterated that the trial court has considerable discretion in the matter; that plaintiffs owe a duty to prosecute their actions with reasonable diligence during the entire period; that a defendant does not owe such a duty; that appellate courts will not normally interfere with the discretion of the trial court as exercised, except that when there is a manifest abuse of discretion on the part of the lower court, an appellate tribunal will not hesitate to set aside the order of dismissal. That this court is familiar with the frequent applicability of these rules is demonstrated by the fact that we have more than once endorsed them in cases heard by us. (Rouse v. Palmer, 197 Cal.App.2d 666, 17 Cal.Rptr. 509; McDonald Candy Co. v. Lashus, 200 Cal.App.2d 63, 19 Cal.Rptr. 137; McKenzie v. Albaeck, 219 Cal.App.2d 97, 32 Cal.Rptr. 762; Chapin v. Superior Court, 234 Cal.App.2d 571, 44 Cal.Rptr. 496.)

Mr. Justice Peek points out in Jensen v. Western Pac. R.R. Co., 189 Cal.App.2d 593, 597, 11 Cal.Rptr. 444, that the statutory rule set up by section 583 of the Code of Civil Procedure '* * * is not without its limitations.' In the opinion, he says:

'Thus it has been held that if there is a valid or reasonable excuse for the delay, then to dismiss the case under the discretionary provisions of section 583 of the Code of Civil Procedure is an abuse of discretion. Jepsen v. Sherry, 99 Cal.App.2d 119, 120, 220 P.2d 819. Or even if after five years it was 'impossible, impractical,' or 'futile' a plaintiff's failure to prosecute may be excused. Pacific Greyhound Lines v. Superior Court, 28 Cal.2d 61, 168 P.2d 665. Because of the many and varied situations which may arise it is also well established that each case should be viewed in the light of its own particular facts. Ordway v. Arata, 150 Cal.App.2d 71, 309 P.2d 919.'

In Daley v. County of Butte, 227 Cal.App.2d 380, 394, 38 Cal.Rptr. 693, 702, the court reversed a judgment of dismissal under the two-year provision of section 583, stating the basic rule as follows:

'The two-year period is not an arbitrary limit, but simply a general guide to determine whether 'want of prosecution' appears and, if so, whether the power to dismiss should be used in view of the facts of the entire situation. (Jepsen v. Sherry, supra, 99 Cal.App.2d at pp. 120--121, 220 P.2d 819.) Under the unusual circumstances of this case, dismissal for want of prosecution would defeat rather than promote substantial justice, constituting an abuse of discretion. (Ordway v. Arata, supra, 150 Cal.App.2d at pp. 75--79, 309 P.2d 919; Wilson v. Barry, 119 Cal.App.2d 621, 624, 259 P.2d 991.)'

Jepsen v. Sherry, 99 Cal.App.2d 119, 122, 220 P.2d 819, 823, reversed a judgment of dismissal under the two-year provision of section 583 of the Code of Civil Procedure, saying:

'In most of the cases where such a dismissal has been sustained either nothing was done by the plaintiff or no valid excuse for the delay was shown, and no unusual circumstances appeared. Unreasonable delay in litigation should be avoided, but all the circumstances should be carefully considered before a plaintiff is denied relief without a hearing. While it appears here, technically, that more than two years had elapsed before the trial date and that some of the delay was probably unnecessary, the excuse for the delay is not entirely unreasonable and there are other considerations which should not be overlooked.' (Emphasis added.)

The court further stated, at page 123, 220 P.2d at page 823, inasmuch as much of the delay was caused by the activities of the defendants, that

'The circumstances here were unusual, all of them should be considered, and an unjust effect should not be given to this procedural rule, which is merely optional. The defendants may owe the plaintiff nothing, but under the circumstances substantial justice requires that this issue should be determined by a trial on the merits. The drastic order made is not sustained by the record before us, and an abuse of discretion clearly appears.'

In Ordway v. Arata, 150 Cal.App.2d 71, 78, 309 P.2d 919, 924, the court reversed a judgment of dismissal under the two-year provision of section 583 of the Code of Civil Procedure, saying:

'We have concluded that taking into consideration the facts and circumstances shown by the record in the instant case there was an abuse of discretion in granting the motion to dismiss the action. As was said in Berry v. Chaplin, supra (74 Cal.App.2d 669, 169 P.2d 453), 'In a legal sense discretion is abused whenever in the exercise of its discretion the court exceeds the bounds of reason, all of the circumstances before it being considered.' While the purpose of the two year provisions in section 583 of the Code of Civil Procedure undoubtedly was to prevent unreasonable delay, we do not believe that it was ever the intention of the legislature to provide that it would be a proper exercise of judicial discretion to grant a motion for dismissal of an action under the circumstances shown by the record here. As a matter of sound public policy litigation should be disposed of upon substantial rather than on technical grounds.'

In Stephens v. Baker & Baker Roofing Co., 130 Cal.App.2d 765, 771, 280 P.2d 39, 43, the court affirmed an order vacating an order of dismissal. In that case, after reviewing the factual situation, which demonstrated that many of the delays in bringing the action to trial were at the request of the defendants' attorney, the court stated:

'It should be pointed out, too, that the undenied fact is that most of the delay in bringing the case to trial was due to plaintiff's acquiescence in defendants' requests and that while defendants' affidavit upon which the court apparently acted in dismissing the case, stated that plaintiff was not diligent, The correspondence between the maker of the affidavit and plaintiff's counsel in the latter half of 1953 Belied that statement.' (Emphasis added.)

It seems clear from many well-reasoned opinions that each case must be examined with respect to its own peculiar features and facts, and that if there has been a manifest abuse of discretion, the appellate court owes a duty to set aside such a dismissal. (Raggio v. Southern P. Co., 181 Cal. 472, 475, 185 P. 171; Pacific Greyhound Lines v. Superior Court, 28 Cal.2d 61, 168 P.2d 665; Judson v. Superior Court, 21 Cal.2d 11, 129 P.2d 361; Christin v. Superior Court, 9 Cal.2d 526, 71 P.2d 205, 112 A.L.R. 1153;...