Finnie v. District No. 1 - Pacific Coast Dist. etc. Assn.

• Decision Date: 25 September 1992
• Docket Number: No. A053145,A053145
• Citation: 12 Cal.Rptr.2d 348,9 Cal.App.4th 1311
• Parties: Robert N. FINNIE, Plaintiff and Respondent, v. DISTRICT NO. 1--PACIFIC COAST DISTRICT, MARINE ENGINEERS' BENEFICIAL ASSOCIATION, et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 348

12 Cal.Rptr.2d 348

9 Cal.App.4th 1311

Robert N. FINNIE, Plaintiff and Respondent, v. DISTRICT NO. 1--PACIFIC COAST DISTRICT, MARINE ENGINEERS' BENEFICIAL ASSOCIATION, et al., Defendants and Appellants.

No. A053145.

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

Sept. 25, 1992.

Allan Brotsky, San Francisco, Myron Moskovitz, Berkeley, for defendants and appellants.

Dennis Kruszynski, Philip Borowsky, Cartwright, Slobodin, Bokelman, Borowsky, Wartnick, Moore & Harris, Inc., San Francisco, for plaintiff and respondent.

PERLEY, Associate Justice.

District No. 1--Pacific Coast District, Marine Engineers Beneficial Association and National Marine Engineers Beneficial Association (AFL-CIO) (collectively, the unions) appeal from an order granting the motion of Robert N. Finnie to vacate a judgment that had dismissed his petition for writ of mandate for failure to bring it to trial within statutory time limits. The principal issue is whether the granting of a motion to dismiss for lack of subject matter jurisdiction is a "trial" within the meaning of Code of Civil Procedure section 583.320, subdivision (a)(3), which requires that an action be brought to trial within three years after a remittitur is filed following reversal of a judgment on appeal and remand for a new trial. We hold that a dismissal for lack of subject matter jurisdiction is a "trial" within the meaning of this statute. Since the trial court reached this same conclusion, we affirm the order vacating the judgment of dismissal.

PROCEDURAL BACKGROUND

Finnie, a marine engineer, was expelled from the unions in 1979 because he failed to follow the unions' directive and proceeded to work on board a ship at a time when the unions were involved in a dispute with the ship owner. Finnie filed his petition for writ of mandate in May of 1981, alleging that the unions failed to follow their constitutions and bylaws in the proceedings that led to his expulsion, and that the unions' disciplinary procedures violated his right to due process under California law.

In June of 1981, the unions removed the action to federal court on the ground that Finnie's suit was for violation of contracts between labor organizations within the meaning of the Taft-Hartley Act. The federal court determined that federal jurisdiction was lacking (Finnie v. District No. 1--Pacific Coast Dist., etc. (N.D.Cal.1981) 538 F.Supp. 455), and remanded the case to the superior court in January of 1982.

The case was eventually set for trial in October of 1986. In August 1986, the unions moved to dismiss the action for lack of subject matter jurisdiction. The unions argued that Finnie's petition was preempted by federal law because it alleged conduct on the part of the unions that arguably constituted an unfair labor practice under the National Labor Relations Act (NLRA). The unions' argument was predicated on the ship owner's engagement in interstate commerce, and on Finnie's status as a supervisor and grievance adjuster for purposes of the NLRA. The pertinent facts were established by declarations in support of the motion to dismiss, and a proposed "statement of undisputed facts" based on depositions in the case. Finnie's opposition to the motion included his declaration on the circumstances of his employment and his discipline by the unions.

The motion to dismiss was granted, and a judgment dismissing the petition for lack of subject matter jurisdiction was entered in October 1986. The judgment stated that the dismissal was based on several findings, including findings on the nature of the ship owner's business and Finnie's employment, and the cause and consequences of Finnie's discipline.

Finnie appealed and we reversed the judgment of dismissal, concluding in light of the applicable authorities and the nature of Finnie's claims that his petition was not preempted by federal law. After the California Supreme Court denied the unions' petition for review, and the United States Supreme Court denied the unions' petition for writ of certiorari, we issued our remittitur on December 26, 1989.

Finnie did not file an at issue memorandum until April 3, 1990. On May 18, 1990, Finnie filed a motion to specially set the case for trial before June 26, 1990. At this point, the parties agreed that the five-year period for bringing the case to trial under Code of Civil Procedure section 583.310 ¹ would have expired on January 20, 1990, but that the mandatory dismissal date had been extended by operation of section 583.350 to June 26, 1990, six months after issuance of the remittitur. (See § 583.350 [plaintiff has six months to bring case to trial if period of tolling ends with less than six months left before mandatory dismissal].) Finnie's motion to specially set the case for trial was denied.

The unions then moved to dismiss the action for failure to bring it to trial by June 26. Finnie opposed the union's motion, and moved for relief from dismissal (§ 473). At that time, Finnie still agreed that the deadline for trial was June 26. On July 25, however, Finnie filed a supplemental brief opposing the motion to dismiss on the ground that he had three years--instead of six months--after the filing of the remittitur to bring the case to trial. (See § 583.320, subd. (a)(3) [trial must be commenced within three years after remittitur if judgment is reversed on appeal and case is remanded for new trial].) Orders granting the union's motion to dismiss and denying Finnie's motion for relief from dismissal were filed in November and December of 1990, and a judgment of dismissal was filed on January 23, 1991.

Finnie moved under section 663 to vacate the order and judgment of dismissal. On February 11, 1991, the court filed its order granting Finnie's motion on the ground that it had "committed an error of law in not applying Code of Civil Procedure, Section 583.320(a)(3) to the motion to dismiss." The unions now appeal the order granting the motion to vacate the judgment of dismissal. (§§ 663a; 904.1, subd. (b).)

DISCUSSION

The unions' first argument is that the order vacating the judgment must be reversed because the court had no power to set aside the dismissal for a legal error. ² The unions submit that, even if the dismissal was erroneous, Finnie could not challenge it except by way of an appeal. It would be unfortunate if this were the case, because we have business enough without having to field appeals on matters that could be promptly corrected in the trial court. We conclude, however, that the unions' argument lacks merit. Finnie could challenge the judgment of dismissal by a timely motion in the trial court and was not relegated solely to an appeal.

Carney v. Simmonds (1957) 49 Cal.2d 84, 315 P.2d 305, held that a motion for new trial lies to attack a judgment of dismissal. The court disapproved a number of cases that had indicated a new trial motion could not be entertained where the only issue tried was one of law. (Id., at p. 90, 315 P.2d 305.) The disapproved precedents were listed in a "first group of cases" that had decided a new trial motion was improper in connection with various classes of judgments, including "... (2). Judgment[s] of dismissal generally: City of Pasadena v. Superior Court [1931] 212 Cal. 309 ...." (Id., 49 Cal.2d at p. 88, 315 P.2d 305.) City of Pasadena v. Superior Court, supra, 212 Cal. at p. 314, 298 P. 968 had held that a motion for new trial could not be used to challenge dismissal of a case where the dismissal was entered "on the ground of the failure of the plaintiff to proceed."

The court in Carney v. Simmonds first noted that the statute governing new trial motions, section 657, speaks broadly in terms of vacating decisions that are "against law." (§ 657, subd. (6).) The court then reasoned that: "there may be a 'trial' and hence a situation proper for a new trial motion where only issues of law are determined. [Citation.] As a matter of orderly procedure there is no less reason why the trial court should have a second chance to reexamine its judgment where issues of fact are involved than where issues of law or law and fact are decided. We conclude therefore that a motion for a new trial is proper procedure in any of the classes of judgments mentioned in the first group of cases above cited whether the judgment is based on law or fact or both, except possibly in the case of default judgments or judgments by agreement or confession where there may be the question of the right of the moving party to make any objection to the judgment. The cases cited in support of the judgments in classes 1, 2, 3 and 4 in the first group of cases are disapproved as well as the statements in those cases which limit a new trial to a case where there had been an issue of fact tried...." (Carney v. Simmonds, supra, 49 Cal.2d at pp. 90-91, 315 P.2d 305.)

Finnie could therefore attack the judgment of dismissal for failure to prosecute by way of a motion for new trial under section 657. In light of this conclusion, we need not reach the unions' argument that the court lacked inherent power to vacate the judgment in the absence of a statutory procedure by which the judgment could be attacked. This is not a case in which the court purported to act on its own motion.

Since there is no question of the trial court's power to set aside the judgment of dismissal upon a timely request, the styling of Finnie's request as a motion to vacate, rather than a motion for new trial, is of no consequence. Assuming that a motion to vacate was improper (see Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 203, 218 Cal.Rptr. 815 [§ 663 motions] seek entry of " 'another and different judgment' " and hence cannot be used merely to restore action to trial calendar), Finnie's motion may properly be treated as a motion for new trial for purposes of appellate review. ³ This result is consistent with the principle that we review results and not reasons (see 9 Witkin, Cal....