Fisher v. Superior Court In and For Los Angeles County

• Decision Date: 23 January 1958
• Citation: 320 P.2d 894,157 Cal.App.2d 126
• Court: California Court of Appeals Court of Appeals
• Parties: Floyd C. FISHER, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF LOS ANGELES, Respondent. Civ. 22856.

Page 894

320 P.2d 894

157 Cal.App.2d 126

Floyd C. FISHER, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF LOS ANGELES, Respondent.

Civ. 22856.

District Court of Appeal, Second District, Division 2, California.

Jan. 23, 1958.

Schell, Delamer & Loring, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Asst. County Counsel, Los Angeles, for respondent.

RICHARDS, Justice pro tem.

This is a petition for a writ of mandate to require the respondent court to dismiss a civil action as to the petitioner for the failure of the plaintiff to bring such action to trial within five years after the filing thereof.

On February 7, 1952, an action for personal injuries was commenced in respondent court entitled 'Russell Georgianna, Plaintiff, vs. Floyd C. Fisher, John A. McDonald, et al., Defendants.' The complaint in said action alleges that the plaintiff was a painter employed by the painting subcontractor on a construction job and was injured in falling from a stepladder as a result of the negligence of a workman laying the subflooring in the building in which the plaintiff was working. It is alleged that the defendant Fisher was the general contractor and the defendant McDonald was a subcontractor and that the plaintiff is in doubt as to which of said defendants is liable. On September 8, 1952, defendant Fisher, the petitioner herein, appeared in said action by filing his demurrer to the complaint and thereafter, on June 30, 1953, the petitioner filed his answer to an amended complaint. Defendant McDonald was served with summons and complaint on February 23, 1954, and in due course appeared by filing his answer. Defendants Fisher and McDonald have been and now are each represented by separate counsel in the proceedings before the trial court. The matter was set for trial on October 30, 1956, but prior thereto a written stipulation was entered into between plaintiff, Fisher and McDonald that the trial be continued and placed off calendar subject to being reset for trial after thirty days. On December 17, 1956, a written stipulation was entered into by plaintiff, Fisher and McDonald setting said action for a pre-trial hearing on March 11, 1957, and, upon the filing of said stipulation, the respondent court, on its own motion, reset said action for trial to be held on May 16, 1957. On or about March 8, 1957, counsel for petitioner advised counsel for plaintiff that petitioner intended to move to dismiss the action as to him in accordance with the provisions of Code of Civil Procedure, section 583, and it was thereupon agreed by counsel for all appearing parties that the pre-trial hearing set for March 11, 1957, be placed off calendar. Accordingly, on March 11, 1957, the pre-trial hearing was placed off calendar and the trial date of May 16, 1957, was vacated by order of the respondent court. On May 21, 1957, pursuant to written notice, the petitioner and his codefendant McDonald each moved to dismiss the action for lack of prosecution pursuant to the provisions of section 583, the five years from the filing of the action having elapsed on February 8, 1957. In opposition to the motions, the plaintiff filed affidavits setting forth the facts of the previous stipulation for a pre-trial hearing and affidavits alleging the absence of the defendant McDonald from the State of California for a period of approximately two years prior to the service of summons and complaint on him in February, 1954. Each motion was denied by the court, the grounds of denial being stated in the minute order as follows: 'In view of the scope of Pre-trial and its purpose (Rule 8.2, 8.4, 8.6, 8.8 and the fact that one purpose is to fix the definite trial date (Rule 8.10) a stipulation to fix the Pretrial date the five year period operates to toll the bar of C.C.P. 583; as does absence by a defendant from the state.'

Section 583 of the Code of Civil Procedure provides that: '* * * Any action * * * shall be dismissed by the court in which the same shall have been commenced * * * unless such action is brought to trial within five years after in plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended and except where it be shown that the defendant has been absent from the State or concealed therein and his whereabouts unknown to the plaintiff and not discoverable * * * upon due diligence in which event said period of absence or concealment shall not be a part of said five-year period.'

The provisions of section 583, requiring dismissal if an action is not brought to trial within five years after the filing of the complaint, unless the parties have stipulated in writing for an extension of the period, are mandatory where applicable (Rose v. Knapp, 38 Cal.2d 114, 117, 237 P.2d 981; Pacific Greyhound Lines v. Superior Court, 28 Cal.2d 61, 63, 168 P.2d 665; Continental Pacific Lines v. Superior Court, 142 Cal.App.2d 744, 749, 299 P.2d 417; Ellsworth v. United States Metals Corp., 110 Cal.App.2d 727, 728, 243 P.2d 575) unless the plaintiff brings the case within one of the exceptions provided for in the section or within one of the implied exceptions engrafted on the statute by the decisions. ¹ One of the recognized exceptions is where, for all practical purposes, proceeding to trial within the statutory period would be both impractical and futile in the light of the facts of the particular case (Rose v. Knapp, supra, 38 Cal.2d at page 117, 237 P.2d at page 983; Pacific Greyhound Lines v. Superior Court, supra, 28 Cal.2d at pages 64-65, 168 P.2d at page 667).

The real parties in interest have not appeared in this proceeding but it is urged on behalf of respondent court that it was within the discretion of the trial court to determine whether the alleged absence of the codefendant McDonald from the State of California tolled the statute as to the petitioner. 'It has been established by case law that each defendant requiring dismissal must ask it of the superior court and that a defendant so asking is entitled to have his right to dismissal determined as to himself alone, Larkin v. Superior Court, 171 Cal. 719, 726-727, 154 P. 841 [Ann.Cas. 1917D, 670]; Bank of America Nat. Trust & Savings Ass'n v. Superior Court, 15 Cal.App.2d 279, 280, 59 P.2d 461; Dowling v. Superior Court, 122 Cal.App. 443, 445, 10 P.2d 197 (decided under the previous form of the statute).' Continental Pacific Lines v. Superior Court, supra, 142 Cal.App.2d 744, 752, 299 P.2d 417, 422. To the same effect: Ellsworth v. United States Metals Corp., supra, 110 Cal.App.2d 727, 243 P.2d 575.

The affidavits filed by the plaintiff in opposition to the separate motions of petitioner and his codefendant McDonald were sufficient to sustain an implied finding that the codefendant McDonald was absent from the State of California for approximately two years after the filing of the action and before service of summons and complaint upon him in February of 1954. As previously stated, the action was set for trial as against petitioner and McDonald in October, 1956. There is no contention in any of said affidavits in opposition to the motion to dismiss that it would have been impossible, impracticable or futile to bring the action to trial as against petitioner at any time after the same was at issue on the amended complaint in 1953. It is a general rule that in a civil action against two or more defendants the trial court has discretion to order separate trials as between the plaintiff and separate defendants (Code Civ.Proc., § 579; Bell v. Staacks, 159 Cal. 193, 196, 115 P. 221; Ellsworth v. United States Metals Corp., supra, 110 Cal.App.2d at page 730, 243 P.2d at page 577; Hahn v. Walter, 60 Cal.App.2d 837, 141 P.2d 925) and the same rule applies to an action to recover damages for personal injuries against two defendants jointly charged to have been guilty of negligence which caused the plaintiff's injury. Cole v. Roebling Construction Co., 156 Cal. 443, 447-448, 105 P. 255. Hence, we conclude, that any...